SE Texas Record

Sunday, August 25, 2019

Court rules Benji's Special Education Academy's case against Tritico & Rainey is time barred because of delay in service

State Court

By Charmaine Little | Aug 14, 2019

HOUSTON – An appeals court has ruled that a former Houston-area charter school waited too long to file a lawsuit against a law firm over allegations of wrongfully withholding funds.

On Aug. 6, the Court of Appeals for the First District of Texas affirmed the 125th District Court of Harris County's ruling to grant Christopher Tritico and Essmyer, Tritico & Rainey PLLC a take-nothing summary judgment in the case filed against it by Benji's Special Education Academy and its CEP Theola Robinson.

Justice Gordon Goodman wrote in the ruling that even though the plaintiffs filed the lawsuit in time, the defendants weren’t served for four years. The defendants argued in the trial court that the statute of limitations had run out, and the trial court ruled in their favor. The plaintiffs then appealed, stating that the trial court erred by failing to apply the proper statues of limitations and other allegations.

The issue started after the Texas Education Agency suspended funding for the academy. The plaintiffs hired the defendants to represent them as they fought the suspension. In July 2009, the defendants told the plaintiffs they were removing themselves from the case and did not represent them after that date. The plaintiffs then sued in 2013 over allegations of malpractice against the defendants for allegedly not returning the retainer they paid. In 2014, a trial court awarded summary judgment to the defendants.

The ruling states the plaintiff did not request issuance of citation or serve the defendants until January 2018.

The statute of limitation in this case is four years. The plaintiffs sued a month before that four-year time frame ran out, but Goodman noted, “a timely-filed suit does not interrupt the running of the statute of limitations unless the plaintiff exercises due diligence in the issuance and service of the citation."

"The Academy’s response to Tritico and the firm’s summary-judgment motion does not make any excuse for the delay in service," Goodman wrote. "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."

Goodman also waived the plaintiff's argument about a continuing-tort doctrine considering they didn’t bring it up in the trial court.

Chief Justice Sherry Radack and Justice Julie Countiss concurred with the ruling.

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