


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-05-00135-CV
 
Sue Walston,
                                                                      Appellant
 v.
 
James H. Stewart 
and Jim Stewart, Realtors, Inc.,
                                                                      Appellees
 
 

From the 19th District Court
McLennan County, Texas
Trial Court No. 2004-4291-4
 

DISSENTING Opinion to Rule 45 Order





 
          It is impossible for me to express the
level with which I disagree with the conclusions of my colleagues that this
appeal was frivolous.  I do not recall any discussion of whether this appeal
was frivolous at pre-submission conference, during oral argument, or in
post-submission conference.  I must ask, if they thought it was frivolous, why
did they, over my objection, schedule it for submission on oral argument rather
than on the briefs?  If they thought it was frivolous, why did they, over my
objection, extend the time for argument?  If they thought this appeal was
frivolous, why did they not discuss that, and why they found it so wanting in
any merit, in the opinion?
          I thought it was an easy legal issue
to dispose of and that is why I did not think that it warranted argument, and
certainly not an extension of argument time.  But the reason I found this case
easy was because in practice I read hundreds, if not thousands, of cases
dealing with limitation issues.  The limitations question is simple enough in a
straightforward case.  But in cases involving the application of a discovery
rule when there are on-going acts in furtherance of the conspiracy, new versus
recurring versus continuing damages caused by a conspiracy, and the possible
cessation of participation in the conspiracy of one of the alleged
co-conspirators, whew, it gets very complicated!  There are many lawyers that
would not have been able to grasp the issues as well as Ms. Walston, who is
acting as her own attorney.
          We routinely see appeals that have far
less merit than this appeal but do nothing about it.  Ask yourself, why would a
majority of this Court target this appellant at this time?  I fear that at
least one justice has grown weary of Ms. Walston.  But for a person representing
herself, she has had phenomenal legal hurdles to overcome and has repeatedly
done so against some of the most experienced attorneys in Waco.  See In
re Walston, No. 10-05-00259-CV, 2005 Tex. App. LEXIS 8833 (Tex. App.—Waco 2005, orig. proceeding); Walston v. Walston, 119 S.W.3d 435 (Tex. App.—Waco 2003, no pet.); Walston v. Walston, 971 S.W.2d 687 (Tex. App.—Waco
1998, pet. denied); Walston v. Walston, No. 10-94-169-CV and No.
10-94-251-CV (Tex. App.—Waco 1995, writ denied) (not designated for publication). 
I certainly understand why a litigant could believe and argue that something
untoward is afoot.  I find no fault in her bringing this appeal.
          And I know it is a little thing, but
if the appeal was frivolous, under the internal rules, that my colleagues think
so much of that they are willing to issue an order before I have had time to
study the issues, anything the author thought was relevant to that order should
have been circulated with the draft.  Pac. Emplrs. Ins. Co. v.
Mathison, 2005 Tex. App. LEXIS 8660 (Tex. App.—Waco Oct. 19, 2005) (Gray,
C.J., Special Note); Procedures for Internal Deadlines for Approval of
Opinions and Orders, Tenth Court of Appeals, General Provisions, p. 2
(Effective May 2, 2005).  I can think of nothing more relevant to the
determination of whether an appeal is frivolous than the appellant’s brief and
the opinion we issued.  But that is not what was circulated.  Rather, what was
circulated was the draft order and two opinions authored by Justice Vance which
addressed sanctions for frivolous appeals.  See Texas Dept. of
Transp. v. Beckner, 74 S.W.3d 98 (Tex. App.—Waco 2002, no pet.); Compass
Exploration, Inc. v. B-E Drilling Co., 60 S.W.3d 273 (Tex. App.—Waco 2001,
no pet.).  So I am not sure what the basis of the determination that the appeal
was frivolous is, but the Rule 45 Order certainly does not tell you.[1] 
Compare this determination to what we identified in Compass Exploration
as supporting the determination that the appeal was frivolous.  In Compass
Exploration, the following factors supported our conclusion that the appeal
was frivolous:
·       
Compass cited no authority
supporting its assertion that section 15.011 is a jurisdictional statute. In
fact, the jurisdictional argument is plainly wrong, as any reasonable attorney
should know.
 
·       
Compass cited no authority
supporting its assertion that Eubank's summary judgment affidavit was improper.
 
·       
Compass made no reasonable
argument that its claims were not compulsory counterclaims.
 
·       
Compass presented no
argument or authority that any law applicable to this case should be changed.
 
·       
In its entire brief, Compass
cites to only two cases, one statute, and one rule of civil procedure.
 
·       
Compass did not respond to
the motion for damages.
 
·       
Compass did not request oral
argument.
 
·       
Compass's brief had to be
returned when originally filed for violation of local rule 14 requiring that
the appendix be bound with the brief. 
 
Compass Exploration, Inc., 60 S.W.3d at 280.  That type analysis is
entirely lacking in the majority’s determination that this appeal is frivolous.
Due Process
          Not only do we not have facts to
support the finding like those present in Compass Exploration, we have
nothing in the Order at all that will tell the reader why we have taken this
extraordinary step, the determination that the appeal was frivolous.  Note that
the majority has already made this determination without notice and the
opportunity to be heard on the issue.  The only issue remaining was whether to
assess sanctions, which they have decided not to do.  I realize one reading of
Rule 45 may be that we can make the determination that an appeal is frivolous
and then give notice.  But in this instance, a majority of the Court rejects
the much better jurisprudential thing to do, which would comport with due
process, that is, to notify the parties that we are considering the issue and
request a response – before the determination is made that the appeal is
frivolous.  But then if they have already made up their minds, such a notice is
form over substance.  Reminds me of the saying, “We’ll give him a fair trial,
and then we’ll hang him.” (origin unknown).


On the Merits of
Whether it was Frivolous
Walston brought three issues on appeal.  We
addressed only the first issue, finding it dispositive.  Walston framed the issue
as follows:
Issue One
 
Appellant has alleged that, more than four years
ago, Appellees engaged in overt acts in furtherance of a continuing conspiracy
to injure her, that Appellees’ co-conspirators have engaged in acts in
furtherance of that conspiracy within the last two years, and that she has
suffered continuing injury from the inception of the conspiracy.  Where
conspirators are jointly and severally liable for damages caused by a
conspiracy, including damage caused by acts of co-conspirators – known or
unknown to all – do two-year and four-year statutes of limitations preclude
Appellant’s cause of action for continuing conspiracy against Appellees?
 
As I was preparing this dissenting opinion to
the Rule 45 Order, I realized that I had failed to fully comprehend the
complexity of Walston’s issue.
The fundamental issue addressed by the Court’s
holding, which I believe to be an issue of first impression and certainly not
frivolous, is, under the continuing tort doctrine as applied to a continuing
conspiracy, does the statute of limitations on the damages caused by a
conspiracy relieve a co-conspirator of liability for damages caused by the
continuance of the conspiracy if the only damages that can be shown to be
proximately caused by the co-conspirator’s participation in the conspiracy were
incurred and known to the victim more than two years prior to the date suit was
brought?  Our answer, though inartfully articulated, is that under those unique
facts the statute of limitations is an affirmative defense available to the
co-conspirators to bar recovery.
Normally, a co-conspirator is jointly and
severally liable for all damages caused by the conspiracy.  Carroll v.
Timmers Chevrolet, Inc., 592 S.W.2d 922, 926 (Tex. 1979) (“Once a conspiracy is proven, each co-conspirator
‘is responsible for all acts done by any of the conspirators in furtherance of
the unlawful combination.’”).  And, the two year statute of limitations is
applicable to a cause of action for conspiracy.  Cathey v. First City Bank,
758 S.W.2d 818, 822 (Tex. App.—Corpus Christi 1988, writ denied).  But under
the doctrine of continuing tort, as long as the conduct constituting the tort
is continuing and damages continue to occur, the victim’s suit is not barred by
the statute of limitations.  Twyman v. Twyman, 790 S.W.2d 819, 821 (Tex.
App.—Austin 1990), rev'd on other grounds, 855 S.W.2d 619 (Tex. 1993).  See Hawthorne Land Co. v. Occidental Chem. Corp., No. 04-30137, 2005
U.S. App. LEXIS 25067, *21 (5th Cir. 2005).
The Texas Supreme Court has not “endorsed nor
addressed” the concept of the continuing tort doctrine.  Creditwatch, Inc.
v. Jackson, 157 S.W.3d 814, 816 n. 8 (Tex. 2005).  If the continuing tort
doctrine is endorsed, the victim of a continuing tort should not be allowed to
recover for damages that occurred prior to the commencement of the limitations
period absent some tolling doctrine.  In this regard, it is important to distinguish
between the commencement of the limitations period, which is when all elements
of a cause of action have occurred, as compared to a tolling of the limitation
period, which is when the deadline within which to bring the suit is delayed
(tolled) for some reason.  The distinction is most readily distinguishable in a
suit by a minor.  All the elements of a cause of action have occurred and the
suit can be brought by a guardian or next friend, but the limitation period is
tolled until the disability of minority is removed.  To say the least, cases
have been very inconsistent in the discussion of when a cause of action
accrues, which is when the statute of limitations commences, and when the limitations
period ends because a tolling event has ended or ceased to exist.  For example,
the discovery rule has sometimes been referred to as a delay in the accrual of
the cause of action until it is discovered[2]
and alternatively described as a tolling of the limitations period until the
cause of action is discovered.[3] 
But if this Court endorses the concept of a continuing tort as described by the
  Austin Court in Twyman, Walston wins.  If we limit the scope of the
doctrine and recovery as herein described, she loses.
Walston contends various actors have conspired
in the past to deprive her of her property.  One of the actors she alleged is
involved is the realtor, Stewart, appointed by the court to conduct the sale of
a home.  She alleges that Stewart became part of, and an actor in, the
conspiracy at that time, 1994.
She argues that the conspiracy is on-going to
this day, causing her new damages.  As such, she argues all the actors who ever
participated in any part of the conspiracy remain jointly and severally liable
for the damages currently resulting from the continuing conspiracy.
The opinion focused on the damages resulting
from the sale of the home.  The focus is on these damages because this is the
result of the conduct engaged in by Stewart – his part, if any, in the
conspiracy, if any, was the sale of the home.
Walston has alleged a continuing tort, a civil
conspiracy to take or impair her rights and property.  She alleges that Stewart
was a co-conspirator.  The damages alleged to have been proximately caused by
Stewart’s participation in the conspiracy are barred by the two year
limitations period.  But if Stewart is shown to be a co-conspirator, and if it
is shown that the conspiracy continues, Stewart would be jointly and severally
liable for the damages occurring within the limitations period, even though
those are not the damages Stewart’s alleged participation caused.  And normally
a co-conspirator does not simply drop out of the conspiracy by inaction and
remains liable unless the co-conspirator affirmatively rejects his former
participation in the conspiracy.  United States v. United States Gypsum Co.,
438 U.S. 422, 464-465, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978) (“Affirmative acts
inconsistent with the object of the conspiracy and communicated in a manner
reasonably calculated to reach co-conspirators have generally been regarded as
sufficient to establish withdrawal or abandonment.”).
So the issue before us was whether the running
of limitations on the only damages proximately caused by Stewart’s alleged
participation in the conspiracy also had the effect of barring a recovery from
Stewart for other damages alleged to have been caused by the conspiracy within
the limitations period.  Our answer was yes, the limitations period barred a
recovery from Stewart.
I challenge the majority to find a case from
this Court, or a court by which we are bound, that sets this as precedent. 
Indeed, I challenge them to find another case decided by any court that has
this fact pattern.
I continue to believe that our holding was a
correct extension of existing precedent to unique facts which has the effect of
creating another defense not previously available to an alleged co-conspirator
of a conspiracy that is alleged to be ongoing, a limitations defense.  This
defense is available even if the conspiracy otherwise continues, so long as it
continues without the co-conspirator’s participation and the only damages shown
to have been proximately caused by the co-conspirator’s participation occurred
prior to the start of the limitations period.


Internal
          The unique issue raised by Walston
deserved a more complete discussion in the Memorandum Opinion.  But it is no
secret that we are a deeply divided court.  Dueling Documents, Texas Lawyer, October 31, 2005, Vol. 21, No. 35, at 3; Mary Alice Robbins, Divided They
Sit:  Opinions Expose Deep Rift at Waco’s 10th Court, Texas Lawyer, January
17, 2005, Vol. 20, No. 46 at 1.  As a deeply divided court, I have found that
the less we write, the less there is to disagree about.  Thus, if we can get to
a result on which we all agree in a memorandum opinion, that is a good thing.
          It probably would have been good to
more fully explain in the opinion the novel theory Walston argued to avoid the
application of the statute of limitations.
          But the appeal is far from frivolous. 
We should not let frustration with a litigant or with each other affect the
analysis of a legal issue or the result.  My fear is that, as to the
determination that this appeal was frivolous, either or both may have occurred.
Conclusion
For the reasons stated, I do not join the order
determining this appeal to have been frivolous.  I dissent.
 
                                                          TOM
GRAY
                                                          Chief
Justice
 
Dissenting
opinion delivered and filed January 18, 2006
Publish




[1] This dissenting opinion was drafted in response
to a different Rule 45 Order, but its substance is applicable to this summary
order as well.  The text of the Rule 45 Order being rendered is as follows.
 
            “The
Court has determined that this appeal is frivolous but has determined not to
impose sanctions.  See Tex. R.
App. P. 45.”


[2]
Wagner & Brown v. Horwood, 58 S.W.3d 732, 734 (Tex. 2001).


[3] Brent v. Daneshjou, No. 03-04-00225-CV,
2005 Tex. App. LEXIS 9249 (Tex. App.—Austin Nov. 4, 2005, no pet. h.)


