                            ACCEPTED
                       03-14-00553-CV
                              4106640
             THIRD COURT OF APPEALS
                        AUSTIN, TEXAS
                 2/11/2015 11:51:51 AM
                     JEFFREY D. KYLE
                                CLERK




       FILED IN
3rd COURT OF APPEALS
     AUSTIN, TEXAS
2/12/2015 11:51:51 AM
    JEFFREY D. KYLE
         Clerk
      Plaintiff now asserts that Respondent-Appellee committed

malpractice by lying to Plaintiff about the facts and circumstances of the

underlying criminal cases. Respondent-Appellee never once lied to Plaintiff

or anyone else about anything - not once, nor did Respondent hide

evidence from Plaintiff. Respondent handled Plaintiff's case in a careful

consistent manner, explaining to Plaintiff every step of the process and

what the possible and potential legal outcomes could and would be.

Plaintiff acknowledged every step to Respondent-Appellee.

      Respondent enters two (2) affirmative defenses to the prosecution of

any and all claims that Plaintiff asserts. 1) The Statute of Limitations is a

complete defense to this civil suit in that Counts 1 - 10, as alleged in

Plaintiff's original petition. A cause of action for legal malpractice is in the

nature of a tort and is thus governed by the two-year limitation statute.

Willis v. Maverick, 760 S.W. 2d 642,644 {Tex. 1988). Plaintiffs alleged

events occurred in 2009 and 2010.

      Plaintiff's legal malpractice claim derives from his 2010 Motion to

Adjudicate and Motion to Revoke Probation sentencing hearing,

respectively, since Plaintiff had previously entered a Plea of Guilty to both

cases- the Aggravated Assault on Peace Officer with Deadly Weapon (F-1)

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and Driving While Intoxicated (subsequent offense- third or more)(F-3).

At the sentencing hearing, the Honorable Judge Reva Towslee had access

to and did review Plaintiff's Pre-Sentence Investigation (PSI) Report

prepared by Lee County CSCD. Plaintiff had a laundry list of criminal

offenses dating back to 1999, including a Federal prison sentence of 10

years. Additionally, Plaintiff also had an extensive history of alcohol and

illegal substance abuse. Therefore, Plaintiff cannot claim that but-for

Respondent's breach of duty, Judge Towslee would have set aside

Plaintiff's Plea of Guilty, criminal record, alcohol and substance abuse

history and that Plaintiff would have prevailed in the underlying cases.

No Evidence of Slander, Libel and Defamation of Character Claim

      To prove a cause of action for Slander, Libel, and Defamation of

Character, Plaintiff must show that Respondent: 1) expressed a statement

of fact, orally or in writing; 2) that the statement was defamatory; 3) that

the statement was false; 4) that Respondent was negligent in making the

false and defamatory statement; and 5) that Plaintiff suffered damages as

a result. Civ. Prac. & Rem. Code, Sec. 73.001, 73.005; See, Brown v. Swett

& Crawford of Texas, Inc., 178 S.W.3d 373, 382 (Tex. App.-Houston [1




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Dist.] 2005, no pet.). Plaintiff has no evidence of any of the five essential

elements of his claim for which he has the burden of proof at trial.

Statute of Limitation Precludes Slander, Libel and Defamation Claim

      The Texas Civil Practice and Remedies Code expressly states the

statute of limitation for a libel and slander cause of action is one (1) year

"after the day the cause of action accrues." Civ. Prac. & Rem . Code, Sec.

16.002 (a). Plaintiff alleges Respondent caused Slander, Libel and

Defamation of Character at Plaintiff's original sentencing date of April 20,

2010. Plaintiff's Original Petition was filed April 9, 2014. Thus, more than

one (1) year passed since alleged statements and the claim of Slander,

Libel and Defamation and is therefore barred by the Statute of Limitations.

      Respondent-Appellee prays this Honorable Court upholds the district

court's granting of summary judgment.

                                          Respectfully submitted,

                                          Chris Dorbandt & Associates, PLLC
                                          Attorneys & Counselors at Law
                                          7000 N. Mopac Expwy., Ste. 200
                                          Austin, TX 78731
                                          Tel: 512.407.9700
                                          Fax : 512.407.9701
                                          Email: cdorbandt@austin-law.com

                                           ~/{/~
                                          Charles C. Dorbandt
                                          SBN: 9000083 7


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                    CERTIFICATE OF COMPLIANCE

I hereby affirm that this Memorandum complies with the Texas Rules of
Appellate Procedures regarding text and footnotes. This document
contains 4,503 words.

                      CERTIFICATE OF SERVICE

By my signature above, I certify that a true and correct copy of the
foregoing Appellee's Memorandum in Answer to Appellants' Brief was sent
to Plaintiff via US Mail as follows: Steven Paul Wilson, TDO No. 01638937,
Allan B. Polunsky Unit, 3872 FM 350 South, Livingston, TX 77351 on
February 11, 2015.

                  NOTICE OF CHANGE OF ADDRESS

Effective February 1, 2015, the firm has moved. Our new address is 7000
N. Mopac Expwy., Ste. 200, Austin, TX 78731. The phone and fax
numbers remain the same.




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