Preview
Electronically Filed
8/16/2023 4:07 PM
Hidalgo County District Clerks
Reviewed By: Victor Castro
CAUSE NO. C-4137-18-M
FELIPE VALENCIA * IN THE DISTRICT COURT
*
v. * 476TH JUDICIAL DISTRICT
*
KELLY MCKINNIS * HIDALGO COUNTY, TEXAS
FELIPE VALENCIA’s RESPONSE TO KELLY MCKINNIS TRADITIONAL MOTION
FOR SUMMARY JUDGMENT
TO HONORABLE COURT:
COMES NOW, FELIPE VALENCIA and files this her response to the Defendant KELLY
MCKINNIS’s Traditional Motion for Summary Judgment and would show this Honorable Court
the following:
EXHIBITS ATTACHED
EXHIBIT A – Original Petition of FELIPE VALENCIA
EXHIBIT B – Suit filed by KELLY MCKINNIS on behalf of FELIPE VALENCIA
EXHIBIT C – Deed to subject property owned by FELIPE VALENCIA
EXHIBIT D – Trustee’s Deed (by Substitute Trustee) transferring property.
EXHIBIT E - Docket Sheet of Bill of Review Cause No. CL-17-2118-B.
EXHIBIT F- Bill of Review Petition Cause No. CL-17-2118-B
EXHIBIT G - Dismissal of Bill of Review Cause No. CL-17-2118-B.
EXHIBIT H - Responses to Admissions
BACKGROUND
1. Plaintiff, FELIPE VALENCIA, retained the Defendant, KELLY MCKINNIS to
recuperate a property described as: Lot Two (2), Block One (1), Guerra Brothers
Subdivision, an addition to the City of Mission, Hidalgo County, Texas, as per map or
FELIPE VALENCIA’s RESPONSE TO
KELLY MCKINNIS TRADITIONAL
MOTION FOR SUMMARY JUDGMENT PAGE 1 OF 5
Electronically Filed
8/16/2023 4:07 PM
Hidalgo County District Clerks
Reviewed By: Victor Castro
plat thereof recorded in Volume 20, Page 167, Map Records, Hidalgo County, Texas (see
Exhibit C deed of FELIPE VALENCIA)
2. The purpose of the representation was to sue on behalf of the Plaintiff FELIPE
VALENCIA to recuperate the foreclosed property from VINCAP PROPERTIES, L.P. (see
Exhibit D Trustee’s Deed to VINCAP PROPERTIES, L.P.)
3. FELIPE VALENCIA alleges that the Defendant made various misrepresentations about
the matter he had been entrusted with; that he failed to perform the tasks he was
employed to do, and that Plaintiff eventually lost the property. (see Exhibit A attached)
4. On October 17, 2013, the Defendant sued on behalf of FELIPE VALENCIA to recuperate
the subject property. (see Exhibit B attached)
5. The case was assigned Cause Number CL-13-3235-B.
6. On September 23, 2016, the Court in CL-13-3235-B set the matter for dismissal for want
of prosecution and the matter was dismissed.
7. As a result of the dismissal of the claims to recuperate the subject property, the Plaintiff
FELIPE VALENCIA had, as part of his claims, made a demand for the reimbursement of
the fees paid to Defendant KELLY MCKINNIS.
8. The Plaintiff further made claims for emotional distress, negligence, monetary loss and
loss of retirement money.
9. On October 14, 2022, the Defendant KELLY MCKINNIS filed his summary judgment
motion stating in relevant part that the Plaintiff is time barred by the two-year statute of
limitations; and, that the Plaintiff has been served with admissions and has admitted away
his case.
STATUTE OF LIMITATIONS WAS TOLLED
FELIPE VALENCIA’s RESPONSE TO
KELLY MCKINNIS TRADITIONAL
MOTION FOR SUMMARY JUDGMENT PAGE 2 OF 5
Electronically Filed
8/16/2023 4:07 PM
Hidalgo County District Clerks
Reviewed By: Victor Castro
10. A cause of action for legal malpractice is subject to the two-year statute of limitations.
TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a).
11. Generally, a cause of action accrues, and the statute of limitations begins to run when
facts come into existence that authorize a party to seek a judicial remedy. Archer v.
Tregellas, 566 S.W.3d 281, 288 (Tex. 2018).
12. The determination of the date of accrual of a cause of action is a legal question that [that
is subject to a] review de novo. Ghidoni v. Skeins, 510 S.W.3d 707, 710 (Tex. App.—San
Antonio 2016, no pet.). Gillette v. Graves (Tex. App. 2020).
13. In the instant case, the claims of FELIPE VALENCIA were subject to the tolling1
provisions of legal malpractice.
14. On May 12, 2017, the Plaintiff filed a Bill of Review as an attempt to undo the dismissal
of Cause No. CL-13-3235. (see Exhibit F)
15. The Bill of Review was assigned Cause No. CL-17-2118-B. (see Exhibit E)
16. That Bill of Review was not denied and dismissed until January 25, 2019. (See Exhibit
G)
17. "Unlike the legal-injury rule and discovery rule, which affect when a claim accrues,
Hughes tolling is an equitable doctrine that tolls the running of limitations from the date
1
Texas recognizes a special tolling rule for certain categories of legal malpractice claims. The
Texas Supreme Court first articulated this tolling rule in Hughes v. Mahaney & Higgins, 821
S.W.2d 154, 157 (Tex. 1991), and later reaffirmed it in Apex Towing Co. v. Tolin, 41 S.W.3d
118, 119 (Tex. 2001). The Hughes tolling rule as articulated in Apex states: "When an attorney
commits malpractice in the prosecution or defense of a claim that results in litigation, the statute
of limitations on a malpractice claim against that attorney is tolled until all appeals on the
underlying claim are exhausted or the litigation is otherwise finally concluded." Apex, 41 S.W.3d
at 119; see Hughes, 821 S.W.2d at 157. Gillette v. Graves (Tex. App. 2020)
FELIPE VALENCIA’s RESPONSE TO
KELLY MCKINNIS TRADITIONAL
MOTION FOR SUMMARY JUDGMENT PAGE 3 OF 5
Electronically Filed
8/16/2023 4:07 PM
Hidalgo County District Clerks
Reviewed By: Victor Castro
of accrual through the date all appeals are exhausted. See id. at 156–57." Zive v.
Sandberg, 644 S.W.3d 169 (Tex. 2022).
18. Thus, the two year limitations period did not commence until the denial of the Bill of
Review in CL-17-2118-B.
19. The Plaintiff, FELIPE VALENCIA, had till January 25, 2021, to file and prosecute his
claims.
MERIT PRECLUSIVE ADMISSIONS INSUFFICIENT
20. The purpose of the rules of civil procedure is to obtain a just, fair, equitable, and impartial
adjudication of the litigants' rights under established principles of substantive law. Tex. R.
Civ. P. 1; Stelly, 927 S.W.2d at 622; In re Kellogg-Brown & Root, Inc., 45 S.W.3d 772,
775 (Tex. App.—Tyler 2001, orig. proceeding) (granting petition for writ of mandamus
based on trial court's failure to set aside deemed, merits-preclusive admissions). In re
American Gunite Mgmt. Co. (Tex. App. 2011)
21. The discovery rules were not designed as traps, nor should we construe them to prevent a
litigant from presenting the truth. Stelly, 927 S.W.2d at 622; Kellogg-Brown & Root, Inc.,
45 S.W.3d at 775.
22. Thus, when merits-preclusive admissions are deemed admitted as an automatic
discovery sanction under rule 198, they are nonetheless subject to the long-standing
due-process principles applicable to other judicially imposed death penalty sanctions
and must be set aside absent flagrant bad faith or callous disregard for the rules. See
Wheeler, 157 S.W.3d at 443; In re American Gunite Mgmt. Co. (Tex. App. 2011).
FELIPE VALENCIA’s RESPONSE TO
KELLY MCKINNIS TRADITIONAL
MOTION FOR SUMMARY JUDGMENT PAGE 4 OF 5
Electronically Filed
8/16/2023 4:07 PM
Hidalgo County District Clerks
Reviewed By: Victor Castro
23. In the instant case, the Plaintiff, FELIPE VALENCIA, has provided responses to the
admissions requests that are asserted by the Defendant as dispositive of Mr.
VALENCIA’S claims.
24. "Requests for admissions were 'never intended to be used as a demand upon a plaintiff or
defendant to admit that he had no cause of action or ground of defense.' Stelly, 927
S.W.2d at 622." Viesca v. Andrews (Tex. App. 2014).
25. In this case, the pro-se Plaintiff, FELIPE VALENCIA’s failure to timely deny the
admissions or respond to the requested admissions is insufficient basis for granting of the
Defendant’s Traditional Motion for Summary Judgment.
26. To rely on the merits-preclusive admissions for the Motion for Summary Judgment the
Defendant must show that the Plaintiff, FELIPE VALENCIA’s failure to respond was
based on flagrant bad faith.2
WHEREFORE, the Plaintiff FELIPE VALENCIA moves that the Court deny the Traditional
Motion for Summary Judgment for the reasons set forth herein.
Respectfully submitted,
/s/ Fabian Guerrero
State Bar No. 00795397
LAW OFFICE OF FABIAN GUERRERO
3900 West Expressway 83
McAllen, Texas 78501
Telephone: (956) 627-4878
Facsimile: (956) 322-8213
fabianlaw96@gmail.com
ATTORNEY FOR PLAINTIFF
FELIPE VALENCIA
2
"This showing of flagrant bad faith or callous disregard is ‘an element of the movant's summary
judgment burden.’ " Medina , 492 S.W.3d at 62 ; see also Marino, 355 S.W.3d at 634 (stating
that using merits-preclusive deemed admissions as basis for summary judgment "incorporates the
requirement [of showing flagrant bad faith or callous disregard] as an element of the movant's
summary judgment burden"). Ramirez v. Noble Energy, Inc., 521 S.W.3d 851 (Tex. App. 2017)
FELIPE VALENCIA’s RESPONSE TO
KELLY MCKINNIS TRADITIONAL
MOTION FOR SUMMARY JUDGMENT PAGE 5 OF 5
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Fabian Guerrero on behalf of Fabian Guerrero
Bar No. 795397
fabianlaw96@gmail.com
Envelope ID: 78607965
Filing Code Description: Answer/Response
Filing Description: FELIPE VALENCIAs RESPONSE TO KELLY
MCKINNIS TRADITIONAL MOTION FOR SUMMARY JUDGMENT
Status as of 8/16/2023 4:13 PM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Kelly K.McKinnis mckinnis22@yahoo.com 8/16/2023 4:07:21 PM SENT
ANGIE SALINAS angie.mariolaw@yahoo.com 8/16/2023 4:07:21 PM SENT
MARIO GARCIA mmariolaw@yahoo.com 8/16/2023 4:07:21 PM SENT
FELIPE VALENCIA felipevalenciajr@yahoo.com 8/16/2023 4:07:21 PM SENT
FABIAN GUERRERO FABIANLAW96@GMAIL.COM 8/16/2023 4:07:21 PM SENT
HIDALGO COUNTY SHERIFF DEPARTMENT CIVIL@HIDALGOSO.ORG 8/16/2023 4:07:21 PM ERROR
Preview
Electronically Filed 8/16/2023 4:07 PM Hidalgo County District Clerks Reviewed By: Victor Castro CAUSE NO. C-4137-18-M FELIPE VALENCIA * IN THE DISTRICT COURT * v. * 476TH JUDICIAL DISTRICT * KELLY MCKINNIS * HIDALGO COUNTY, TEXAS FELIPE VALENCIA’s RESPONSE TO KELLY MCKINNIS TRADITIONAL MOTION FOR SUMMARY JUDGMENT TO HONORABLE COURT: COMES NOW, FELIPE VALENCIA and files this her response to the Defendant KELLY MCKINNIS’s Traditional Motion for Summary Judgment and would show this Honorable Court the following: EXHIBITS ATTACHED EXHIBIT A – Original Petition of FELIPE VALENCIA EXHIBIT B – Suit filed by KELLY MCKINNIS on behalf of FELIPE VALENCIA EXHIBIT C – Deed to subject property owned by FELIPE VALENCIA EXHIBIT D – Trustee’s Deed (by Substitute Trustee) transferring property. EXHIBIT E - Docket Sheet of Bill of Review Cause No. CL-17-2118-B. EXHIBIT F- Bill of Review Petition Cause No. CL-17-2118-B EXHIBIT G - Dismissal of Bill of Review Cause No. CL-17-2118-B. EXHIBIT H - Responses to Admissions BACKGROUND 1. Plaintiff, FELIPE VALENCIA, retained the Defendant, KELLY MCKINNIS to recuperate a property described as: Lot Two (2), Block One (1), Guerra Brothers Subdivision, an addition to the City of Mission, Hidalgo County, Texas, as per map or FELIPE VALENCIA’s RESPONSE TO KELLY MCKINNIS TRADITIONAL MOTION FOR SUMMARY JUDGMENT PAGE 1 OF 5 Electronically Filed 8/16/2023 4:07 PM Hidalgo County District Clerks Reviewed By: Victor Castro plat thereof recorded in Volume 20, Page 167, Map Records, Hidalgo County, Texas (see Exhibit C deed of FELIPE VALENCIA) 2. The purpose of the representation was to sue on behalf of the Plaintiff FELIPE VALENCIA to recuperate the foreclosed property from VINCAP PROPERTIES, L.P. (see Exhibit D Trustee’s Deed to VINCAP PROPERTIES, L.P.) 3. FELIPE VALENCIA alleges that the Defendant made various misrepresentations about the matter he had been entrusted with; that he failed to perform the tasks he was employed to do, and that Plaintiff eventually lost the property. (see Exhibit A attached) 4. On October 17, 2013, the Defendant sued on behalf of FELIPE VALENCIA to recuperate the subject property. (see Exhibit B attached) 5. The case was assigned Cause Number CL-13-3235-B. 6. On September 23, 2016, the Court in CL-13-3235-B set the matter for dismissal for want of prosecution and the matter was dismissed. 7. As a result of the dismissal of the claims to recuperate the subject property, the Plaintiff FELIPE VALENCIA had, as part of his claims, made a demand for the reimbursement of the fees paid to Defendant KELLY MCKINNIS. 8. The Plaintiff further made claims for emotional distress, negligence, monetary loss and loss of retirement money. 9. On October 14, 2022, the Defendant KELLY MCKINNIS filed his summary judgment motion stating in relevant part that the Plaintiff is time barred by the two-year statute of limitations; and, that the Plaintiff has been served with admissions and has admitted away his case. STATUTE OF LIMITATIONS WAS TOLLED FELIPE VALENCIA’s RESPONSE TO KELLY MCKINNIS TRADITIONAL MOTION FOR SUMMARY JUDGMENT PAGE 2 OF 5 Electronically Filed 8/16/2023 4:07 PM Hidalgo County District Clerks Reviewed By: Victor Castro 10. A cause of action for legal malpractice is subject to the two-year statute of limitations. TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a). 11. Generally, a cause of action accrues, and the statute of limitations begins to run when facts come into existence that authorize a party to seek a judicial remedy. Archer v. Tregellas, 566 S.W.3d 281, 288 (Tex. 2018). 12. The determination of the date of accrual of a cause of action is a legal question that [that is subject to a] review de novo. Ghidoni v. Skeins, 510 S.W.3d 707, 710 (Tex. App.—San Antonio 2016, no pet.). Gillette v. Graves (Tex. App. 2020). 13. In the instant case, the claims of FELIPE VALENCIA were subject to the tolling1 provisions of legal malpractice. 14. On May 12, 2017, the Plaintiff filed a Bill of Review as an attempt to undo the dismissal of Cause No. CL-13-3235. (see Exhibit F) 15. The Bill of Review was assigned Cause No. CL-17-2118-B. (see Exhibit E) 16. That Bill of Review was not denied and dismissed until January 25, 2019. (See Exhibit G) 17. "Unlike the legal-injury rule and discovery rule, which affect when a claim accrues, Hughes tolling is an equitable doctrine that tolls the running of limitations from the date 1 Texas recognizes a special tolling rule for certain categories of legal malpractice claims. The Texas Supreme Court first articulated this tolling rule in Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex. 1991), and later reaffirmed it in Apex Towing Co. v. Tolin, 41 S.W.3d 118, 119 (Tex. 2001). The Hughes tolling rule as articulated in Apex states: "When an attorney commits malpractice in the prosecution or defense of a claim that results in litigation, the statute of limitations on a malpractice claim against that attorney is tolled until all appeals on the underlying claim are exhausted or the litigation is otherwise finally concluded." Apex, 41 S.W.3d at 119; see Hughes, 821 S.W.2d at 157. Gillette v. Graves (Tex. App. 2020) FELIPE VALENCIA’s RESPONSE TO KELLY MCKINNIS TRADITIONAL MOTION FOR SUMMARY JUDGMENT PAGE 3 OF 5 Electronically Filed 8/16/2023 4:07 PM Hidalgo County District Clerks Reviewed By: Victor Castro of accrual through the date all appeals are exhausted. See id. at 156–57." Zive v. Sandberg, 644 S.W.3d 169 (Tex. 2022). 18. Thus, the two year limitations period did not commence until the denial of the Bill of Review in CL-17-2118-B. 19. The Plaintiff, FELIPE VALENCIA, had till January 25, 2021, to file and prosecute his claims. MERIT PRECLUSIVE ADMISSIONS INSUFFICIENT 20. The purpose of the rules of civil procedure is to obtain a just, fair, equitable, and impartial adjudication of the litigants' rights under established principles of substantive law. Tex. R. Civ. P. 1; Stelly, 927 S.W.2d at 622; In re Kellogg-Brown & Root, Inc., 45 S.W.3d 772, 775 (Tex. App.—Tyler 2001, orig. proceeding) (granting petition for writ of mandamus based on trial court's failure to set aside deemed, merits-preclusive admissions). In re American Gunite Mgmt. Co. (Tex. App. 2011) 21. The discovery rules were not designed as traps, nor should we construe them to prevent a litigant from presenting the truth. Stelly, 927 S.W.2d at 622; Kellogg-Brown & Root, Inc., 45 S.W.3d at 775. 22. Thus, when merits-preclusive admissions are deemed admitted as an automatic discovery sanction under rule 198, they are nonetheless subject to the long-standing due-process principles applicable to other judicially imposed death penalty sanctions and must be set aside absent flagrant bad faith or callous disregard for the rules. See Wheeler, 157 S.W.3d at 443; In re American Gunite Mgmt. Co. (Tex. App. 2011). FELIPE VALENCIA’s RESPONSE TO KELLY MCKINNIS TRADITIONAL MOTION FOR SUMMARY JUDGMENT PAGE 4 OF 5 Electronically Filed 8/16/2023 4:07 PM Hidalgo County District Clerks Reviewed By: Victor Castro 23. In the instant case, the Plaintiff, FELIPE VALENCIA, has provided responses to the admissions requests that are asserted by the Defendant as dispositive of Mr. VALENCIA’S claims. 24. "Requests for admissions were 'never intended to be used as a demand upon a plaintiff or defendant to admit that he had no cause of action or ground of defense.' Stelly, 927 S.W.2d at 622." Viesca v. Andrews (Tex. App. 2014). 25. In this case, the pro-se Plaintiff, FELIPE VALENCIA’s failure to timely deny the admissions or respond to the requested admissions is insufficient basis for granting of the Defendant’s Traditional Motion for Summary Judgment. 26. To rely on the merits-preclusive admissions for the Motion for Summary Judgment the Defendant must show that the Plaintiff, FELIPE VALENCIA’s failure to respond was based on flagrant bad faith.2 WHEREFORE, the Plaintiff FELIPE VALENCIA moves that the Court deny the Traditional Motion for Summary Judgment for the reasons set forth herein. Respectfully submitted, /s/ Fabian Guerrero State Bar No. 00795397 LAW OFFICE OF FABIAN GUERRERO 3900 West Expressway 83 McAllen, Texas 78501 Telephone: (956) 627-4878 Facsimile: (956) 322-8213 fabianlaw96@gmail.com ATTORNEY FOR PLAINTIFF FELIPE VALENCIA 2 "This showing of flagrant bad faith or callous disregard is ‘an element of the movant's summary judgment burden.’ " Medina , 492 S.W.3d at 62 ; see also Marino, 355 S.W.3d at 634 (stating that using merits-preclusive deemed admissions as basis for summary judgment "incorporates the requirement [of showing flagrant bad faith or callous disregard] as an element of the movant's summary judgment burden"). Ramirez v. Noble Energy, Inc., 521 S.W.3d 851 (Tex. App. 2017) FELIPE VALENCIA’s RESPONSE TO KELLY MCKINNIS TRADITIONAL MOTION FOR SUMMARY JUDGMENT PAGE 5 OF 5 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Fabian Guerrero on behalf of Fabian Guerrero Bar No. 795397 fabianlaw96@gmail.com Envelope ID: 78607965 Filing Code Description: Answer/Response Filing Description: FELIPE VALENCIAs RESPONSE TO KELLY MCKINNIS TRADITIONAL MOTION FOR SUMMARY JUDGMENT Status as of 8/16/2023 4:13 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Kelly K.McKinnis mckinnis22@yahoo.com 8/16/2023 4:07:21 PM SENT ANGIE SALINAS angie.mariolaw@yahoo.com 8/16/2023 4:07:21 PM SENT MARIO GARCIA mmariolaw@yahoo.com 8/16/2023 4:07:21 PM SENT FELIPE VALENCIA felipevalenciajr@yahoo.com 8/16/2023 4:07:21 PM SENT FABIAN GUERRERO FABIANLAW96@GMAIL.COM 8/16/2023 4:07:21 PM SENT HIDALGO COUNTY SHERIFF DEPARTMENT CIVIL@HIDALGOSO.ORG 8/16/2023 4:07:21 PM ERROR