     Case: 19-10066      Document: 00515131824         Page: 1    Date Filed: 09/25/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 19-10066                       September 25, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
GEOFFREY SANSOM, as Administrator of the Estate of Roland B. Holt,
Deceased,

              Plaintiff - Appellant

v.

EVVAJEAN MALTER MINTZ; DAVID J. FELDMAN; REENA I.
THADHANI, as personal representatives for the Estate of Richard G. Mintz;
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY ; POPEO, P.C.,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:18-CV-637


Before SMITH, WILLETT, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Geoffrey Sansom, an estate administrator, appeals a district court order
dismissing his state law claims as time-barred. We affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 19-10066    Document: 00515131824     Page: 2   Date Filed: 09/25/2019



                                 No. 19-10066
                                       I.
        On March 18, 2018, Sansom sued the law firm Mintz, Levin, Cohn,
Ferris, Glovsky & Popeo, P.C. (“Mintz Levin”) and the estate of its now-
deceased partner, Richard Mintz (“Mintz”). Sansom alleged breach of fiduciary
duty, legal malpractice, fraud, failure to account, and tortious interference of
administration in connection with the firm’s administration of the estate of
Roland Holt (“Holt”), who died seventeen years earlier. Defendants moved to
dismiss Sansom’s claims as barred under the relevant statutes of limitations,
and the district court granted that motion.
        Holt passed away on May 11, 2001, having named Mintz the alternate
executor of his estate. Mintz and his law firm, Mintz Levin, subsequently
began probating Holt’s estate. They provided billing estimates and tax
documents to Holt’s heirs along the way. Although Mintz originally suggested
that the estate could be wrapped up as early as 2004, things progressed slowly
and billing estimates increased. Despite the heirs’ concerns and repeated
requests for information, they received little communication about the estate
until 2008, when Mintz assured the heirs that the estate would likely close the
following year. That next year, however, Mintz and the Holt heirs clashed over
the disposal of the last remaining piece of estate property: an industrial
building in New Hampshire. Mintz and the law firm proceeded with the sale
on their own terms, and declared the estate closed at the end of the year in
2010.
        According to the complaint, the Holt heirs received unsupported and
erroneous final billing statements from Mintz Levin that substantially
exceeded prior assurances, all but exhausting the estate’s assets. Meanwhile,
Mintz himself passed away in April 2012, prompting the Holt heirs to appoint
Sansom, another attorney, as successor independent administrator the
following month. Sometime in January 2014, Sansom learned about the
                                       2
    Case: 19-10066     Document: 00515131824      Page: 3   Date Filed: 09/25/2019



                                  No. 19-10066
excessive and unauthorizing billing from one of the Holt heirs. In order to
investigate these concerns, Holt sent a letter to Mintz Levin on January 30,
2014 requesting all materials pertaining to the Holt estate. When Mintz Levin
failed to deliver the file, Sansom retained third party counsel who dispatched
a follow up demand to Mintz Levin in October 2014, noting that Sansom had
received pressure from the heirs regarding the overbilling and the accounting
discrepancies. Sansom eventually received the entire file in November 2015.
      Upon concluding that Mintz and his firm overbilled the Holt heirs by
$162,917.73, Sansom mailed a demand to Mintz Levin on March 9, 2016. He
subsequently filed suit in state court on August 24, 2016 asserting claims
against Mintz’s estate and the Mintz Levin firm for conduct occurring between
May 2001 and December 2010. After Defendants removed the case to federal
court, the case was dismissed without prejudice on January 29, 2018 for
Sansom’s failure to prosecute. Sansom then filed the present suit—virtually
identical to the first—in federal court on March 18, 2018. Finding that
Sansom’s claims were time-barred, the district court granted Defendants’
motion to dismiss for failure to state a claim on December 21, 2018. This appeal
followed.
                                        II.
      Sansom concedes that the limitations periods for all his claims are either
two or four years. His only argument on appeal is that in granting Defendants’
motion to dismiss the district court failed to properly apply the discovery rule
under Texas law.
      We review a district court’s grant of a Rule 12(b)(6) motion to dismiss for
failure to state a claim de novo. Jones v. Alcoa, Inc., 339 F.3d 359, 362 (5th Cir.
2003). “A statute of limitations may support dismissal under Rule 12(b)(6)
where it is evident from the plaintiff's pleadings that the action is barred and
the pleadings fail to raise some basis for tolling or the like.” Id. at 366. Under
                                        3
     Case: 19-10066       Document: 00515131824         Page: 4     Date Filed: 09/25/2019



                                       No. 19-10066
Texas law the discovery rule provides a “very limited exception to statutes of
limitations” by tolling the limitations period “until the plaintiff knew or,
exercising reasonable diligence, should have known of the facts giving rise to
the cause of action.” Computer Assocs. Int’l., Inc. v. Altai, Inc., 918 S.W.2d 453,
455 (Tex. 1996). However, if a plaintiff is “apprised of facts that would prompt
a reasonably diligent person to make an inquiry that would lead to discovery
of the cause of action,” the limitations period is not tolled. PPG Indus., Inc. v.
JMB/Houston Ctrs. Partners Ltd. P’ship, 146 S.W.3d 79, 93 (Tex. 2004).
       Sansom does not specify when he thinks he was put on notice as to
Defendants’ alleged misconduct. A charitable reading of his brief suggests he
believes he was put on notice when he received the Holt file from Mintz Levin
in November 2015 such that Sansom’s claims (even the ones with two-year
limitations periods) were timely made when he filed his state court lawsuit in
August 2016. But even on this generous construal, Sansom’s argument is
doubly flawed.
       First, the alleged facts show that Sansom was on notice as to the heirs’
concerns no later than January 30, 2014. In an affidavit submitted to the
district court, Sansom acknowledges that one of the Holt heirs told Sansom
about Mintz Levin’s excessive billing sometime in January 2014, and that
Sansom sent a follow up letter to the firm on January 30, 2014 in order to
investigate those concerns. 1 The district court properly recognized that if
Sansom was suspicious enough to send the letter, he was apparently “apprised
of facts that would prompt a reasonably diligent person to make an inquiry



       1  To be sure, Sansom’s affidavit is outside the pleadings and may have been
improperly submitted, having been filed in response to Defendants’ motion to dismiss.
Nevertheless, the district court apparently relied the contents of the affidavit in ruling on
Defendants’ motion, and Sansom does not challenge this reliance on appeal. In fact, Sansom’s
brief to this court urges us to consider the facts “particularly described in the affidavit of
Geoffrey Sansom and the exhibits to same filed in the District Court action.”
                                              4
    Case: 19-10066    Document: 00515131824     Page: 5   Date Filed: 09/25/2019



                                 No. 19-10066
that would lead to discovery of the cause of action.” Because the limitations
period began to run on Sansom’s claims no later than January 30, 2014, all his
claims were barred by the time he filed the present suit on March 19, 2018.
      Second, the fact that Sansom filed virtually identical claims in state
court on August 24, 2016 did nothing to preserve his causes of action, including
the ones with four-year limitations periods that were still alive at that time.
“[A]lthough the filing of suit and service of citation interrupt the running of
the statute [of limitations], its dismissal for want of prosecution will have the
same effect as if the suit had never been filed.” Milestone Properties, Inc. v.
Federated Metals Corp., 867 S.W.2d 113, 119 (Tex. App. 1993) (internal
quotation omitted). “When a cause of action is dismissed and later refiled,
limitations are calculated to run from the time the cause of action accrued until
the date that the claim is refiled.” Delhomme v. Comm’n for Lawyer Discipline,
113 S.W.3d 616, 621 (Tex. App. 2003) (citing Clary Corp. v. Smith, 949 S.W.2d
452, 459 (Tex. App. 1997). Because Sansom’s August 2016 lawsuit was
dismissed for failure to prosecute, it did not interrupt the running of the
applicable statutes of limitations.
      Based on the foregoing, the district court properly found that Sansom’s
claims were time-barred.
      AFFIRMED.




                                       5
