Affirmed in Part, Dismissed in Part, and Memorandum Opinion filed August
1, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00626-CV

                      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

                           MEMORANDUM OPINION

      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

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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 he still had a viable claim for
negligent entrustment against Luu.

      Luu and Tat filed a joint reply, which was divided into three parts. In the first
part, Tat argued that Colorado had failed to raise a fact issue on his counter-
affirmative defense of fraudulent concealment. In the second part, Luu moved for
both a traditional and a no-evidence summary judgment on the newly pleaded claim
of negligent entrustment. And in the third part, Luu moved for sanctions against
Colorado’s attorney for filing the claim of negligent entrustment, which she argued
was groundless.

      Without stating its reasons, the trial court granted summary judgment to both
Luu and Tat. The trial court also sanctioned Colorado’s attorney in the amount of
$750, which was the same amount requested in the motion for sanctions. Colorado


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then filed an appeal with Austin’s Third Court of Appeals, and that appeal was
transferred to us by order of the Texas Supreme Court.

                            SUMMARY JUDGMENT

      Colorado’s appellate complaint is limited in scope. He does not challenge the
summary judgment that was granted in favor of Luu. Rather, he only challenges the
summary judgment that was granted in favor of Tat. And as to that particular
summary judgment, Colorado does not challenge the legal sufficiency of Tat’s
motion (i.e., whether Tat satisfied his initial burden of establishing the affirmative
defense of limitations). Colorado argues instead that Tat was not entitled to summary
judgment because a fact issue was raised on the counter-affirmative defense of
fraudulent concealment. We limit our review accordingly. See Purser v. Coralli, No.
05-15-00359-CV, 2016 WL 6087675, at *2 (Tex. App.—Dallas Oct. 18, 2016, no
pet.) (mem. op.) (addressing only the question of fraudulent concealment where the
nonmovants did not challenge on appeal whether the movants had met their initial
burden of establishing a limitations defense).

      Fraudulent concealment is an equitable doctrine that estops the defendant
from relying on the statute of limitations when the defendant has sought to avoid
liability “by deceitfully concealing wrongdoing until limitations has run.” See Shell
Oil Co. v. Ross, 356 S.W.3d 924, 927 (Tex. 2011). The doctrine only applies when
the defendant had a duty to make a disclosure about the existence of a cause of action
and the defendant concealed that information from the party to whom it belonged.
See Valdez v. Hollenbeck, 465 S.W.3d 217, 229–30 (Tex. 2015). The doctrine
operates by tolling limitations only until the cause of action is discovered or could
have been discovered through the exercise of reasonable diligence. See BP Am.
Prod. Co. v. Marshall, 342 S.W.3d 59, 67 (Tex. 2011).



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      A plaintiff who claims fraudulent concealment has the burden of raising a fact
issue for each of the doctrine’s elements, which are as follows: (1) the defendant
actually knew that the plaintiff was wronged, and (2) the defendant concealed the
wrong to deceive the plaintiff. See ExxonMobil Corp. v. Lazy R Ranch, LP, 511
S.W.3d 538, 544 (Tex. 2017). When deciding whether Colorado raised a fact issue
as to these elements, we apply a de novo standard of review, and we consider all of
the evidence in the light most favorable to Colorado, because he was the nonmovant.
See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

      As evidence of fraudulent concealment, Colorado relies on two letters from
an insurance company that were sent to his attorney before this suit was filed. The
first letter is a single page in length, and it requests from Colorado’s attorney copies
of Colorado’s medical records. The second letter is also a single page in length, and
it notifies Colorado’s attorney that the claim has been assigned to a new claims
representative. Both letters correctly identify Colorado as the claimant and the date
of loss as Christmas Day 2015. But Colorado asserts that the letters concealed Tat
as the responsible driver because each letter “misrepresented that Phuong Luu was
the one negligently operating the motor vehicle responsible for causing the collision
made the basis of this case.” And because of those alleged misrepresentations,
Colorado argues that limitations did not begin to run until February 14, 2018, when
Luu specifically informed Colorado that Tat, instead of Luu, was the driver and
owner of the vehicle involved in the accident.

      The letters do not support Colorado’s argument. Nothing in the letters
purports to identify who was driving the vehicle that allegedly hit Colorado. The
letters merely identify Luu in the margins as a “named insured.” That term means
that Luu is covered by the insurance policy. See Black’s Law Dictionary 811 (7th
ed. 1990). It does not mean that Luu or her insurance company were concealing Tat’s

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identity as the responsible driver. And more to the point, because Colorado had an
adversarial relationship with Luu and her insurance company, they had no duty to
disclose Tat’s identity in either of the two letters. See Patrick v. Howard, 904 S.W.2d
941, 945 (Tex. App.—Austin 1995, no writ) (“The cases where fraudulent
concealment applies are rare, such as those involving doctor-patient, attorney-client,
or fiduciary relationships.”).

      Colorado also relies on a dispatch report from the police as other evidence of
fraudulent concealment. Without ever explaining why the police might have an
intent to deceive him, Colorado complains that the dispatch report is the only public
record of the accident, and because the dispatch report names Luu as the owner of
the vehicle, Colorado appears to believe that he was justified when he originally sued
Luu instead of Tat.

      The problem with this argument is that the dispatch report actually identifies
both Luu and Tat as owners of the vehicle, not Luu exclusively. Furthermore, the
dispatch report contains the driver’s license information of both Colorado and Tat,
not Luu. This information establishes that even if there were evidence of fraudulent
concealment (and there is none), Colorado could have determined through the
exercise of reasonable diligence that Tat was the driver to be sued, not Luu. And
because the dispatch report was completed on the same day as the accident, there
would be no tolling of the statute of limitations.

      Based on the foregoing, we conclude that Colorado failed to raise a genuine
issue of material fact on his counter-affirmative defense of fraudulent concealment.
The summary judgment in favor of Tat was therefore appropriate.




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                                    SANCTIONS

      Colorado complains in his next issue about the sanctions order against his
attorney. Luu responds that Colorado lacks standing to assert this complaint because
the sanctions were directed solely against the attorney, not Colorado as well.

      An appealing party may not complain of errors that do not injuriously affect
him or that merely affect the rights of others. See Torrington Co. v. Stutzman, 46
S.W.3d 829, 843 (Tex. 2000). Here, the sanctions order only affected the rights of
Colorado’s attorney, which means that the only person with standing to complain of
this issue is Colorado’s attorney. But as Luu further points out, if Colorado’s
attorney wanted to challenge the sanctions order, he was required to file his own
notice of appeal or join in Colorado’s notice of appeal. See Tex. R. App. P. 25.1(c)
(“A party who seeks to alter the trial court’s judgment or other appealable order must
file a notice of appeal. Parties whose interests are aligned may file a joint notice of
appeal.”). Because Colorado’s attorney did neither, he did not invoke this court’s
appellate jurisdiction. See Sluder v. Ogden, No. 03-10-00280-CV, 2011 WL 116058,
at *2 (Tex. App.—Austin Jan. 13, 2011, pet. denied) (mem. op.) (holding that an
attorney could not complain of a sanctions order where the attorney did not file his
own notice of appeal or join in his client’s notice of appeal).

                                   CONCLUSION

      We dismiss for want of jurisdiction the portion of the appeal that challenges
the trial court’s sanctions order. As for the other portion of the appeal, we affirm the
trial court’s judgment.


                                        /s/       Tracy Christopher
                                                  Justice

Panel consists of Justices Christopher, Bourliot, and Zimmerer.

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