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Click here for the full text of this decision FACTS:Patricia Ordorica filed a personal injury suit against Anthony Juarbe on Oct. 2, 2000. The suit arose out of a car accident that occurred on April 18, 1998. Juarbe filed a motion for summary judgment based on the two-year statute of limitations. Ordorica claimed that the statute of limitations did not apply because of equitable estoppel. She claimed that she relied on her insurance carrier’s representation that it would settle her claim for her once her medical treatment concluded. Ordorica said she relied on this representation when she allowed the limitations period to expire without filing suit. The trial court denied Juarbe’s motion. Juarbe filed a supplemental motion for summary judgment, again raising the statute of limitations defense and further alleging that Ordorica (or, her attorney) knew on May 31, 2000, that Juarbe would raise the limitations issue. This time, the trial court granted Juarbe’s motion, though without stating why, and entered a take-nothing judgment against Ordorica. HOLDING:Affirmed. The court first addresses the equitable estoppel issue, noting that the doctrine does not toll the statute of limitations but merely prevents the defendant from raising limitations as a defense. In addition to the five basic elements of the doctrine � 1. a false representation or concealment of a material fact; 2. made with knowledge or the means of knowledge of the real facts; 3. to a party without knowledge or the means of knowledge of the real facts; 4. with the intention that it should have been acted upon; and 5. the party to whom it was made must have relied upon or acted upon it to his prejudice � the plaintiff must prove that her reliance was reasonable or justified. Juarbe contends that Ordorica’s reliance was not reasonable, whereas Ordorica contends that this issues was already decided in the trial court’s first ruling denying summary judgment and is now res judicata. The court sides with Juarbe, noting that he raised the statute of limitations affirmative defense in both motions, at which point Ordorica was required to raise defenses of equitable estoppel and establish a fact issue on each element of that defense. Juarbe’s supplemental motion for summary judgment included the allegation that Ordorica did not exercise diligence in filing the suit. Furthermore, res judicata does not operate to bar Juarbe from re-urging his limitations defense, nor was the trial court precluded from reconsidering its prior ruling. The court adds that the insurer’s assurances that it would settle the Ordorica’s case were actually made to Ordorica’s attorney who was clearly aware of the applicable limitations period. There is no evidence that the attorney’s reliance was reasonable. Though its ruling against Ordorica on the equitable estoppel issue resolves the case, the court nonetheless considers the other possible ground the trial court’s judgment could have been based on: due diligence. The court rejects Ordorica’s contention that due diligence applies only when a plaintiff learns of a misrepresentation before the statute of limitations expires; she argues that her attorney did not learn of the misrepresentation by the insurer until the limitations period expired. Under Ordorica’s reading, a plaintiff could wait for years before filing suit so long as she found out about a misrepresentation after the statute of limitations expired. The court does not find the existence of a fact issue over whether four months � from the time the insurer informed Ordorica’s lawyer that the insurer would assert the statute of limitations defense to the time Ordorica filed suit � constituted due diligence. Ordorica’s attorney stated that he thought he could change the insurer’s mind, but finally realized that he couldn’t. “In cases involving the plaintiff’s failure to use due diligence to obtain service, a four-month delay, when coupled with a weak explanation and ineffectual efforts to obtain service, has been held to constitute a lack of due diligence has a matter of law.” OPINION:McClure, J.; Barajas, C.J., McClure, and Chew, JJ.

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