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Court of Appeals of Texas, Houston (1st Dist.).


NO. 01-15-00865-CV

Decided: March 28, 2017

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.


This case involves a dispute over the termination of plaintiff-appellant Artis Harrell's lease of a hair-salon workstation. The trial court granted summary judgment on Harrell's claims, concluding they were limitations barred. We affirm.


In 2006, Harrell sued the two defendant-appellees in this suit, i.e., S.P. Dairy Ashford d/b/a Salon Park (SPDA) and Brinson Management Corporation (BMC), as well as an individual employee of the company defendants, i.e., Branch Brinson. In that earlier suit,1 SPDA and BMC claimed that in the seven years that suit was pending, Harrell served only Branch Brinson, but never obtained proper service upon either SPDA or BMC. On March 25, 2013, the trial court granted summary judgment in Branch Brinson's favor on Harrell's claims and dismissed Harrell's claims against SPDA and BMA for want of prosecution.

On April 5, 2013, Harrell appealed the trial court's March 25, 2013 judgment to this Court. On July 11, 2013, we dismissed his appeal because he “neither paid the required fees nor established indigence for purposes of appellate costs.”2 Harrell then filed a petition for writ of mandamus challenging the trial court's March 25, 2013 judgment, two petitions for writ of mandamus challenging the trial court's order sustaining the district clerk's contest to his affidavit of indigence, and a restricted appeal from both the trial court's March 25, 2013 judgment and its order sustaining the district court's contest to his indigence affidavit. We denied all three petitions for writ of mandamus 3 and dismissed the restricted appeal for want of jurisdiction.4


On November 24, 2014, Harrell filed new lawsuit against SPDA and BMC based on the same allegations as his prior lawsuit.5 Specifically, he alleged that on August 25, 2003, he entered a written lease with SPDA for use of a hair-salon station. The lease was for a four-week term, and it automatically renewed for four-week periods until notice of termination was given by either party. Harrell asserted that, on February 12, 2004, SPDA (through its agent Branch Brinson) terminated the lease agreement without giving him the required 28 days' notice. Harrell sought to hold BMC liable as SPDA's parent company, and to hold BMC liable for wrongfully interfering with his lease with SPDA. He pleaded claims for breach of contract, conversion, tortious interference, and exemplary damages.

SPDA and BMC filed a general denial and asserted two affirmative defenses: (1) Harrell's claims are barred by the 4-year breach-of-contract and 2-year tort limitations periods, and (2) Harrell cannot prove he suffered any damages, as at all relevant times he was incarcerated.

SPDA and BMC then filed a traditional motion for summary judgment on all of Harrell's claims, arguing that Harrell's claims accrued on February 12, 2004—the date of the lease termination—and that the statute of limitations had run on all his claims before he filed suit on November 24, 2014. The trial court granted summary judgment, and Harrell brought this appeal.


In his first issue, Harrell argues that the trial court erred in granting summary judgment for SPDA and BMC because he raised a fact issue as to whether his claims were barred by limitation.

A. Standard of Review

We review a trial court's decision to grant a motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Under the traditional summary-judgment standard, the movant has the burden to show that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In determining whether there are disputed issues of material fact, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference in the nonmovant's favor. Nixon, 690 S.W.2d at 548–49.

A defendant is entitled to summary judgment on an affirmative defense if it conclusively proves all the elements of the affirmative defense. Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). When a defendant seeks summary judgment on the basis of limitations, it must (1) conclusively prove when the cause of action accrued and, (2) if the plaintiff has pleaded, or otherwise raised, the discovery rule, conclusively negate it. KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).

B. Analysis

Harrell concedes his claims accrued more than ten years before the underlying lawsuit was filed. He advances several reasons, however, that he contends the filing of his underlying petition should relate back to the filing date of his original petition in his prior lawsuit.

The “relation-back doctrine” allows for certain amended pleadings to relate back to an original pleading's filing date:

If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence.

TEX. CIV. PRAC. & REM. CODE § 16.068 (West 2014). Harrell contends that he timely filed his original petition in the prior lawsuit, and that he exercised due diligence in having the defendants in the prior lawsuit served such that his current petition should relate back and be deemed timely under section 16.068.

Harrell entitled his November 24, 2014 filing in the underlying case “Amended Original Petition to Recover Damages for Defendants' Breach of Lease Agreement and Conversion.” But an “amended” petition can only relate back to an earlier-filed petition in a pending case. Rodriguez v. Cruchfield, 301 S.W.3d 772, 776 (Tex. App.—Dallas 2009, no pet.) (“[I]t is too late to amend the pleadings after judgment has been rendered.” (citing Denman v. Citgo Pipeline Co., 123 S.W.3d 728, 735 (Tex. App.—Texarkana 2003, no pet.)).

Harrell's claims against SPDA and BMC were dismissed on March 25, 2013. “A dismissal is the equivalent of a suit never having been filed.” Cunningham v. Fox, 879 S.W.2d 210, 212 (Tex. App.—Houston [14th Dist.] 1994, writ denied). Thus, if a suit is dismissed, the statute of limitations is not tolled for any new pleading filed. See Rodriguez, 301 S.W.3d at 776 (“When a case is refiled following dismissal, the statute of limitations is calculated at the date of refiling.”). Harrell's petition in the underlying suit thus cannot relate back to his petition-filing date in the previously dismissed lawsuit.

Harrell alternatively argues that the discovery rule applies to defeat a limitations bar. The discovery rule, in some cases, will delay accrual of a cause of action until the plaintiff “knew or should have known of facts that in the exercise of reasonable diligence would have led to discovery” of an injury. Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 722 (Tex. 2016). It only applies if “the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable.” Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006). Harrell reasons that the discovery rule applies because the trial court allegedly did not give him proper notice of its intention to dismiss his claims against SPDA and BMC in the prior lawsuit.

The discovery rule here was negated as a matter of law, as Harrell's filing of his 2006 prior lawsuit—premised on the same complaints underlying this untimely suit—demonstrates that he was aware of facts giving rise to his claims. Harrell took a timely direct appeal from the trial court's dismissal in the previous case, and that is the procedurally proper way to challenge an allegedly improper dismissal. The discovery rule is inapplicable on this facts.

Finally, Harrell argues that equitable tolling applies to defeat a limitations bar. Equitable tolling may delay accrual “in situations where a claimant actively pursued his judicial remedies but filed a defective pleading during the statutory period, or where a complainant was induced or tricked by his adversary's misconduct into allowing filing deadlines to pass.” Bailey v. Gardner, 154 S.W.3d 917, 920 (Tex. App.—Dallas 2005, no pet.) (citing Czerwinski v. Univ. of Tex. Health Sci. Ctr. at Houston Sch. of Nursing, 116 S.W.3d 119, 122–23 (Tex. App.—Houston [14th Dist.] 2002, pet. denied)). He claims that he actively pursued his lawsuit and merely filed defective pleadings (i.e., the citations in the previous lawsuit), and that Brinson fraudulently tricked him into letting the limitations period pass by submitting a dismissal order for the court to sign in the prior lawsuit without providing notice to Harrell.

But Harrell knew the trial court dismissed his prior claims, as evidenced by his challenges to that dismissal through a timely direct appeal, petitions for writ of mandamus, and restricted appeal. To the extent his equitable tolling argument goes to lack of notice before the trial court dismissed his claims against SPDA and BMC, that complaint again would be an issue for a direct challenge to the dismissal, not application of equitable tolling in a new lawsuit.

Because SPDA and BMC conclusively demonstrated that Harrell's claims were barred by limitations and negated application of Harrell's asserted defenses, the trial court did not err in granting summary judgment. We overrule Harrell's first issue.


In his second issue, Harrell argues that the trial court erred in overruling his motion for continuance because “no part of discovery had been completed.” We review a trial court's ruling on a motion for continuance of a summary judgment hearing for abuse of discretion. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). The following nonexclusive factors are relevant to a claim that the trial court abused its discretion: (1) the length of time the case has been on file; (2) the materiality and purpose of the discovery sought; and (3) whether the party seeking the continuance has exercised due diligence to obtain the discovery sought. Id.

SPDA and BMC set their motion for summary judgment for submission on July 6, 2015. Harrell filed a motion for continuance on June 29, 2015, before the court granted summary judgment on August 18, 2015, asserting that, under the above factors, he established his need for, and right to, additional discovery to defeat summary judgment:

The description of necessary evidence. Interrogatories necessary from SPDA & BMC regarding the investigation into the claims made by Harrell and the affirmative defenses made by SPDA and BMC. Harrell served SS.P. Dairy Ashford d.b.a. [sic] Salon Park with two sets of interrogatories and had served BMC with one set of interrogatories.

Materiality. The interrogatories to SPDA & BMC are material evidence in establishing that SPDA & BMC caused Harrell, among other claims, lost profits, that the cause of actions are not barred by any statute of limitations defense, and that the equitable tolling doctrine is applicable to the cause of actions.

Diligence. Harrell made numerous attempts to serve SPDA & BMC with interrogatories. SPDA & BMC refuse to comply with Harrell's discovery requests. Harrell has also filed a motion to compel with the court. The case had been pending for three (3) months after the defendants' answer was filed. The defendants [motion] for summary judgment is an abuse of the discovery process by withholding key evidence [sic], which would entitle plaintiff to a continuance to complete discovery before the court considers the motion for summary judgment.

The record does not contain a ruling on Harrell's motion for continuance. Gonerway v. Corr. Corp. of Am., 442 S.W.3d 443, 446 (Tex. App.—Dallas 2013, no pet.) (complaint that trial court erred by failing to grant motion for continuance was not preserved for appellate review where record did not reflect that trial court ruled on motion, that movant had alerted the court to the motion, or that movant had objected to any refusal by the court to rule).

Harrell does not describe what evidence he needed, why he did not procure the alleged necessary discovery during the seven years his identical claims were pending against SPDA and BMC in the prior lawsuit, nor does he explain why the discovery he sought is material to his claims. Denying his motion would not be an abuse of the trial court's discretion. See, e.g., Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689, 697 (Tex. App.—Dallas 2008, no pet.) (no abuse of discretion in granting traditional summary judgment, despite nonmovants request for additional time for discovery, given that nonmovant did not specify the evidence needed and did not detail alleged diligence in seeking it); Closs v. Goose Creek Consol. Indep. School Dist., 874 S.W.2d 859, 867 (Tex. App.—Texarkana 1994, no writ) (trial court's denial of motion to continue traditional summary-judgment hearing was not abuse of discretion because, “[b]eyond a conclusory statement that he could procure controverting evidence, [nonmovant] did not specify what evidence he hoped to procure, did not detail its materiality, and did not provide the trial court with a compelling reason to grant a continuance so [nonmovant] could engage in discovery”).

We overrule Harrell's second issue.


We affirm the trial court's judgment.


1.   Cause No. 2006-02867, in the 189th District Court for Harris County.

2.   Cause No. 01-13-00313-CV.

3.   Cause Nos. 01-13-00517-CV, 01-13-00535-CV, 01-14-00690-CV.

4.   Cause No. 01-13-00786-CV.

5.   Cause No. 2014-68877. The current case was transferred from the 334th District Court to the 189th District Court, because the 189th had rendered judgment in the previous case.

Sherry Radack Chief Justice