                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00168-CV


THEODIS DODSON                                                     APPELLANT

                                       V.

ROBERT FORD                                                         APPELLEE


                                    ----------

          FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

                                    ----------

                        MEMORANDUM OPINION 1

                                    ----------

      The trial court granted summary judgment on the professional negligence

and civil conspiracy claims brought by Appellant Theodis Dodson, pro se, against

his former attorney, Appellee Robert Ford. 2 In four issues, Dodson argues that

the trial court erred by granting summary judgment on his conspiracy claim


      1
      See Tex. R. App. P. 47.4.
      2
      While this case was pending in the trial court, Ford’s attorney filed a
suggestion of death regarding Ford.
based on the grounds that Dodson had not been exonerated and that the suit

was filed outside the statute of limitations, erred by not appointing him counsel,

and abused its discretion by not ruling on his “Next Friend’s Motion for

Recognition and Request for Finding And/Or Determinations for Noncompos

Mentis of Plaintiff.” Because we hold that the trial court did not err by granting

summary judgment and did not abuse its discretion by not appointing him

counsel and that Dodson has not shown that he was harmed by the trial court’s

failure to rule on the next friend’s motion, we affirm.

                                    Background

      Ford and another attorney represented Dodson on a charge of capital

murder. Dodson pled guilty under a plea agreement and, on March 4, 2008, the

trial court entered a judgment of guilty and sentenced him to confinement for life

without parole.

      On October 10, 2011, Dodson filed suit against Ford for negligence and

conspiracy. He alleged that Ford failed to assist Dodson in preparing an insanity

defense, failed to inform the trial court that Dodson was mentally ill, failed to have

Dodson examined for competence to stand trial, induced Dodson to enter a plea

of guilty while Dodson was mentally ill, and “did not subject [Dodson] to any of

the procedures required by law in prosecuting mentally ill offenders.”

      Regarding his conspiracy claim, Dodson alleged that Ford had entered into

a civil conspiracy with the assistant district attorney prosecuting the case. He

alleged that Ford requested psychological evaluations of Dodson during the


                                          2
criminal proceedings, that he received two psychological reports regarding

Dodson, that he delivered copies of these reports to the ADA without presenting

them to the trial court, that the ADA subsequently decided not to pursue his own

motion for a psychological evaluation, and that Ford “concealed the reports from

the court by not presenting them, so that the court did not receive the evidence,

which would have led to a bona fide doubt of [Dodson’s] competence to stand

trial.” He alleged that Ford did not intend to request a competence hearing for

Dodson “so that [Dodson’s] criminal case could be disposed of with a mentally ill

offender’s plea of guilt” and that Ford “knew or should have known that the trial

court could not orde[r] a competenc[e] hearing . . . without having seen the

psychological reports.”

      Dodson attached several exhibits to his petition. These exhibits included a

report from Dr. Kelly Goodness, titled “Most Salient Mitigation Factors,” made in

connection with Dodson’s criminal trial and a letter from Michael Chafetz, a board

certified clinical neuropsychologist. Chafetz’s letter informed Dodson that he had

examined Dodson for the mitigation phase of his trial and that Chafetz did not

address the legal issues of mental state or competence at the time of Dodson’s

crime because he was not asked to do so. Dodson also attached the affidavit

that Ford had made in connection with a previously filed post-conviction writ of

habeas corpus proceeding filed by Dodson.

      Dodson also attached the motion that the ADA had filed in his criminal

case seeking to have Dodson examined. The motion stated that Dodson had


                                        3
engaged the services of Goodness and Chafetz and had asked the trial court to

order that Dodson submit to a psychological evaluation by an expert retained by

the State.

      Ford filed an answer, affirmative defenses, and special exceptions.

Freddie Brewer, also an inmate, filed a “next friend affidavit” stating that he was

assisting Dodson as next friend and that he was unable to pay costs. He also

filed with Dodson a response to Ford’s answer.          In this response, Brewer

requested that the trial court appoint Dodson counsel. The trial court denied the

request.

      Ford filed a traditional and no-evidence motion for summary judgment.

Ford alleged in his motion that Dodson had freely and voluntarily pled guilty in his

criminal case. As a ground for traditional summary judgment, Ford asserted that

Dodson’s claims fell within the two-year statute of limitations and that his claims

were filed over one year and five months outside that period. As a no-evidence

ground, Ford cited Peeler v. Hughes & Luce 3 and asserted that Dodson had the

burden to establish that he had been exonerated of his conviction. In Peeler, the

Supreme Court of Texas considered a woman’s negligence claim brought

against her former attorney after she was convicted of a federal crime, and the

court held that she could not show causation because “as a matter of law, it is

the illegal conduct rather than the negligence of a convict’s counsel that is the


      3
       909 S.W.2d 494, 497–98 (Tex. 1995).


                                         4
cause in fact of any injuries flowing from the conviction, unless the conviction has

been overturned.” 4 Ford argued that Dodson had not shown any evidence of his

exoneration and that Dodson therefore lacked the evidence to prove causation

on his claims.

        Ford attached summary judgment evidence to his motion, much of it the

same evidence included by Dodson with his petition. He attached the indictment

in Dodson’s criminal case, showing that it was filed on September 12, 2007.

Next, he attached a copy of the judgment in the criminal case, showing that the

judgment was entered and the sentence imposed on March 4, 2008. He also

attached a copy of Dodson’s petition, including the exhibits that Dodson filed with

his petition. The petition’s file stamp showed that it was filed on October 10,

2011.

        Ford also included Goodness’s report and his own affidavit from the earlier

habeas corpus proceeding. In Goodness’s report, she opined that Dodson had a

mental illness and had an “IQ [that] is low enough to be in the mentally retarded

range.” But she further explained that Dodson’s “adaptive functioning exceeds

the levels required for a diagnosis of Mental Retardation.” In her opinion, the

most accurate diagnosis of Dodson’s cognitive deficits was “Borderline

Intellectual Functioning.”    In Ford’s affidavit, he stated that Goodness had




        4
        Id. at 495, 497–98.


                                         5
determined that Dodson was competent and that “every psychological

assessment demonstrates that [Dodson] was competent.”

      Dodson filed a response to the summary judgment motion. He asserted

that the statute of limitations was tolled because Ford did not rebut his assertion

that he, Dodson, was of unsound mind. He also stated that Ford’s assertion that

Dodson’s own acts caused his damages should be left to a fact finder. He also

filed an affidavit in which he averred that he is of unsound mind.

      Brewer filed a motion for recognition, asking the trial court to recognize him

as next friend. He also asked the court to make a finding that Dodson was

incompetent. No order on this motion appears in the record.

      The trial court granted summary judgment for Ford. Dodson now appeals.

                               Standard of Review

      We review a summary judgment de novo. 5 We consider the evidence

presented in the light most favorable to the non-movant, crediting evidence

favorable to the non-movant if reasonable jurors could, and disregarding

evidence contrary to the non-movant unless reasonable jurors could not. 6 We

indulge every reasonable inference and resolve any doubts in the non-movant’s




      5
       Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
      6
      Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009).


                                         6
favor. 7 A defendant who conclusively negates at least one essential element of a

cause of action is entitled to summary judgment on that claim. 8

      A defendant is entitled to summary judgment on an affirmative defense if

the defendant conclusively proves all the elements of the affirmative defense. 9

To accomplish this, the defendant-movant must present summary judgment

evidence that conclusively establishes each element of the affirmative defense. 10

To conclusively establish the affirmative defense of limitations, a defendant must

(1) conclusively prove that        the cause of action accrued before the

commencement of the statute of limitations period, and (2) negate the discovery

rule, if it applies and has been pleaded or otherwise raised, by proving as a

matter of law that there is no genuine issue of material fact about when the

plaintiff discovered, or in the exercise of reasonable diligence should have

discovered, the nature of the plaintiff’s injury. 11 If the defendant establishes that




      7
       20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
      8
      Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010), cert.
denied, 131 S. Ct. 1017 (2011); see Tex.R. Civ. P. 166a(b), (c).
      9
       Frost Nat’l Bank, 315 S.W.3d at 508–09; see Tex. R. Civ. P. 166a(b), (c).
      10
          See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008).
      11
       KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d
746, 748 (Tex. 1999).


                                          7
the statute of limitations bars the action, the plaintiff must then adduce summary

judgment proof raising a fact issue in avoidance of the statute of limitations. 12

                                      Analysis

      Dodson does not contest the trial court’s summary judgment on his

negligence claim against Ford. He does, however, argue that the trial court erred

by granting summary judgment on his conspiracy claim. In Dodson’s second

issue, he argues that the trial court erred by granting summary judgment on the

ground that his claims were barred by the statute of limitations. In his third issue,

he argues that the trial court should have granted a partial summary judgment

only on his negligence claim and should not have disposed of his conspiracy

claim on the ground that he had not been exonerated because he produced as

summary judgment evidence an affidavit that he is of unsound mind.                   We

construe Dodson’s argument as asserting that the Supreme Court’s Peeler

holding applies only to professional negligence claims and does not bar his

conspiracy claim.

      It is unclear whether Dodson’s conspiracy claim is for the common law tort

of civil conspiracy or whether it is a claim for conspiracy under 42 U.S.C.

§ 1983. 13 Our analysis applies to both categories of tort claims.


      12
        See id.
      13
         42 U.S.C.A. § 1983 (West 2012); see also City of Monterey v. Del Monte
Dunes at Monterey, Ltd., 526 U.S. 687, 709, 119 S. Ct. 1624, 1638 (1999)
(noting that § 1983 creates a species of tort liability).


                                          8
        The statute of limitations for civil conspiracy claims is two years. 14 This

same limitations period applies to a claim under § 1983. 15         Ford produced

summary judgment evidence showing that all of the wrongful acts were alleged to

have occurred by the time of Dodson’s conviction, that Dodson was found guilty

and sentenced on March 4, 2008, 16 and that Dodson filed this suit on October 10,

2011.

        The general rule in the summary judgment context is that a defendant

seeking summary judgment on an affirmative defense such as limitations has the

burden to prove each essential element of that defense. 17 Once the defendant

has done so, if the plaintiff wishes to defeat summary judgment on the basis of

an affirmative defense, that is “in the nature of confession and avoidance,” 18 the

        14
         See Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (West Supp. 2012);
McPherson Rd. Baptist Church v. Mission Investors/Fort Worth, LP, No. 02-08-
00412-CV, 2009 WL 2579647, at *8 (Tex. App.—Fort Worth Aug. 20, 2009, no
pet.) (mem. op.) (applying the two-year statute of limitations to a claim for civil
conspiracy); Mayes v. Stewart, 11 S.W.3d 440, 453 (Tex. App.—Houston [14th
Dist.] 2000, pet. denied) (same).
        15
         See Wallace v. Kato, 549 U.S. 384, 387, 127 S. Ct. 1091, 1095 (2007)
(stating that for § 1983 claims, the applicable statute of limitations is the state’s
period of limitations for personal injury torts).
        16
        See Poag v. Flories, 317 S.W.3d 820, 826 (Tex. App.—Fort Worth 2010,
pet. denied) (“In general, a cause of action accrues and limitations begin running
when a wrongful act causes a legal injury.”).
        17
         Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996).
        18
       Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975); Henry v.
Premier Healthstaff, 22 S.W.3d 124, 127–28 (Tex. App.—Fort Worth 2000, no
pet.).


                                          9
burden shifts to the plaintiff. In that case—when the non-movant plaintiff does

not dispute that limitations have run but argues that, nonetheless, limitations

should not apply to end the plaintiff’s suit—the non-movant must produce

sufficient summary judgment evidence to raise a genuine issue of material fact

on the defense. 19

      Not all attempts to avoid summary judgment based on limitations give rise

to an evidentiary burden on the non-movant. If the plaintiff non-movant raises a

challenge to the existence of limitations, the defendant movant has the burden to

negate the applicability of the raised issue. 20 Thus, if the non-movant has pled or

otherwise argued that limitations have not run because of the discovery rule or

      19
          See Ryland Group, 924 S.W.2d at 121 (holding that after movant
established its right to summary judgment based on limitations, non-movants had
the burden to present enough proof to raise a fact issue on their affirmative
defenses of fraudulent concealment and willful misconduct); see also Boyd v.
Kallam, 152 S.W.3d 670, 676 (Tex. App.—Fort Worth 2004, pet. denied)
(defining a plea in confession and avoidance and stating that “[t]he party seeking
to benefit from the plea in avoidance also bears the burden of proof on the matter
because that party will generally have greater access to the facts necessary to
establish the matter”); Black’s Law Dictionary 339 (9th ed. 2009) (defining
“confession and avoidance” as “[a] plea in which a defendant admits allegations
but pleads additional facts that deprive the admitted facts of an adverse legal
effect”).
      20
          Zale Corp., 520 S.W.2d at 891. Cf. Yancy v. United Surgical Partners
Int’l, Inc., 236 S.W.3d 778, 781, 784–85 (Tex. 2007) (holding that while the
movant asserting limitations has the burden to negate the discovery rule, “which
defers accrual of a cause of action until the plaintiff knew or, exercising
reasonable diligence, should have known of the facts giving rise to the claim,” the
non-movant asserting a violation of the Texas constitution’s open courts
provision has the burden to raise a fact issue about whether he had a reasonable
time to discover the alleged wrong and bring suit within the limitations period or
that he sued within a reasonable time after discovering the alleged wrong).


                                        10
the application of a tolling statute, the movant is not entitled to summary

judgment on the basis of limitations unless the movant has established that the

raised issue does not apply. 21 In that case, the issue of tolling becomes a part of

the case that the defendant movant must prove in order to establish its right to

judgment as a matter of law on the affirmative defense of limitations. Who has

the burden of proof therefore generally depends on whether the plaintiff resisting

summary judgment acknowledges that limitations have run or refutes it. Keeping

these rules in mind, we consider the defenses and evidence presented below.

      In response to Ford’s motion for summary judgment, Dodson asserted that

the limitations period had not run because he was of unsound mind. 22 Section



      21
        KPMG Peat Marwick, 988 S.W.2d at 748; Jennings v. Burgess, 917
S.W.2d 790, 793 (Tex. 1996). But see Doe v. Catholic Diocese of El Paso, 362
S.W.3d 707, 723 (Tex. App.—El Paso 2011, no pet.) (stating that where the non-
movant asserts a tolling statute, the movant must negate the applicability of the
statute but nevertheless putting the burden on the non-movant to prove that he
was of unsound mind during the relevant time period); Choice Acquisitions No.
Two Inc. v. Noesi, No. 14-06-00973-CV, 2007 WL 2239206, at *6 (Tex. App.—
Houston [14th Dist.] Aug. 7, 2007, no pet.) (mem. op.) (stating that it was the
non-movant appellants’ burden to raise a fact issue on tolling based on mental
incapacity in order to defeat summary judgment); Grace v. Colorito, 4 S.W.3d
765, 769 (Tex. App.—Austin 1999, pet. denied) (“To prevent a summary
judgment on an unsound-mind theory, the non-movant needs to produce specific
evidence that would enable the court to conclude that she did not have the
mental capacity to pursue litigation for a definite period of time, or produce a fact-
based expert opinion to that effect.”) (emphasis added). Our holding would be
the same under either approach.
      22
        See Ray v. O’Neal, 922 S.W.2d 314, 315 (Tex. App.—Fort Worth 1996,
writ denied) (considering tolling argument raised in a response to a summary
judgment motion); see also Proctor v. White, 172 S.W.3d 649, 652 (Tex. App.—
Eastland 2005, no pet.) (considering discovery rule argument raised in response

                                         11
16.001 of the civil practice and remedies code provides that if a person is under

the legal disability of unsound mind when a cause of action accrues, the time for

which the person is of unsound mind is not included in calculating the limitations

period. 23 Ford therefore had to make a prima facie showing that this provision

did not apply to toll limitations 24 before the burden would shift to Dodson to raise

a question of fact on the issue. 25

      Section 16.001 of the civil practice and remedies code does not define the

term “unsound mind.” 26     But the Supreme Court of Texas has said that the

disability of persons of unsound mind includes “the inability to participate in,

control, or even understand the progression and disposition of their lawsuit.” 27




to summary judgment motion as tried by consent when movant did not object to
non-movant’s reliance on the argument).
      23
        Tex. Civ. Prac. & Rem. Code Ann. § 16.001(a), (b) (West 2002).
      24
       Jennings, 917 S.W.2d at 793. But see Chavez v. Davila, 143 S.W.3d
151, 156 (Tex. App.—San Antonio 2004, pet. denied) (putting the burden on the
non-movant asserting tolling because she was of unsound mind to raise a
question of fact on that issue).
      25
       See Tex. R. Civ. P. 166a(c); see also Bank of Commerce v. Barton, 605
S.W.2d 638, 639 (Tex. Civ. App.—Fort Worth 1980, writ dism’d) (“Where
evidence would be available to raise such a disability as an issue of fact,
summary judgment would be improper.”).
      26
        See Tex. Civ. Prac. & Rem. Code Ann. § 16.001.
      27
        Ruiz v. Conoco, Inc., 868 S.W.2d 752, 755 (Tex. 1993); see also
Hargraves v. Armco Foods, Inc., 894 S.W.2d 546, 547 (Tex. App.—Austin 1995,
no writ) (noting that section 16.001 does not define “unsound mind” but that the
probate code defines the term as “persons non compos mentis, mentally

                                         12
Thus, we look at the summary judgment evidence submitted to see whether Ford

made a prima facie showing that Dodson had the ability to participate in, control,

or understand the progression and disposition of the lawsuit he filed. 28

      Ford attached to his summary judgment motion the report from Dr.

Goodness, the same report that Dodson attached to his petition.             As stated

above, Goodness did opine that Dodson had a mental illness and that Dodson

had an “IQ [that] is low enough to be in the mentally retarded range.” But she

further explained that a diagnosis of mental retardation is a two-prong evaluation,

with IQ being only one diagnostic factor. She stated that “the second prong of

the diagnosis requires that the deficient IQ be coupled with concurrent deficits in

adaptive functioning” and that Dodson’s “adaptive functioning exceeds the levels

required for a diagnosis of Mental Retardation.”         In her opinion, the most

accurate diagnosis of Dodson’s cognitive deficits was “Borderline Intellectual

Functioning.”

      In Ford’s affidavit, he stated that Goodness had made an initial finding that

Dodson was competent and that her opinion never varied during her work on the




disabled persons, insane persons, and other persons who are mentally
incompetent to care for themselves or manage their property and financial
affairs”).
      28
        See Ruiz, 868 S.W.2d at 755.


                                         13
case. 29      He also stated that regarding Dodson’s asserting that Ford did not

investigate the insanity defense, he had told Dodson that their experts did not

consider insanity a viable defense and therefore they made a joint decision not to

pursue it, and the psychological assessment did not support such a defense. 30

This evidence is sufficient to make a prima facie case that, though Dodson

suffers from mental illness and has a low IQ, he does not lack the inability to

participate in, control, or understand the progression and disposition of this

lawsuit. 31

       Dodson then had the burden to produce evidence to raise a fact issue on

the question of tolling. He produced no additional evidence other than his own

affidavit stating that he is of unsound mind. 32 The affidavit includes a reference

to “next friend affiant,” suggesting that Brewer made the affidavit, but it is signed




       29
         See Hargraves, 894 S.W.2d at 547 (observing that the probate code
definition of a person of unsound mind includes persons who are mentally
incompetent).
       30
       See id. (stating that “in general, ‘persons of unsound mind’ and ‘insane
persons’ are synonymous”).
       31
           See Ruiz, 868 S.W.2d at 755.
       32
         See Tex. R. Civ. P. 166a(f) (requiring affidavits supporting or opposing
summary judgment to affirmatively show “that the affiant is competent to testify to
the matters stated therein”); see also Tex. R. Evid. 902(10)(b) (setting out an
affidavit form that meets the requirements of the rules of evidence, which
includes an assertion that the affiant is of sound mind).


                                          14
by Dodson. 33 We assume, then, that Dodson executed the affidavit but with

Brewer’s help.

      The affidavit states,

      I, Theodis Dodson by and through Next Friend, do hereby certify
      deposed and state that I am unsound of mind and I have filed suit in
      this case against Defendant by Next Friend for the purpose of this
      summary judgment evidence; Affiant declare that due to variety of
      mental disorders and borderline retardation; that constitutes a legal
      disability which Affiant did plea in his complaint at page 2, IV[.]
      Affiant swear that Defendant have not offered any dispositive
      evidence to show that affiant is not entitled to limitation disabilities. If
      not for the Next Friend Affiant could not have file his suit due to
      disability[.] Attention need to be place on the Next Friend whom by
      law is acting on Affiant behalf, take away next friend Affiant disability
      must stand. Affiant claim alleged numerious claims or causes of
      action. Affiant states that Defendant may well be entitled to a partial
      summary judgment on malpractice of the defendant attorney
      however, Affiant states that all the civil right or constitutional
      violations can not be disposed of by the partial motion filed by
      Defendant.

      Because Dodson is an interested party, his affidavit testimony was

required to be uncontroverted, clear, positive, direct, credible, free from

contradiction, and susceptible to being readily controverted. 34 His statement that

he is of unsound mind is nothing more than a legal conclusion. 35              Although


      33
      See Tex. R. Civ. P. 166a(f) (requiring affidavits supporting or opposing
summary judgment to be made on personal knowledge).
      34
       See Tex. R. Civ. P. 166a; Residential Dynamics, LLC v. Loveless, 186
S.W.3d 192, 198 (Tex. App.—Fort Worth 2006, no pet.).
      35
        See Lindley v. McKnight, 349 S.W.3d 113, 126 (Tex. App.—Fort Worth
2011, no pet.) (observing that “[a] conclusory statement is one that does not
provide the underlying facts to support the conclusion”).


                                          15
Dodson stated that he had mental disorders and borderline retardation, he

provided no facts to support any conclusion that he did not have the ability to

participate in, control, or understand the progression and disposition of this

lawsuit. 36 Conclusory statements are incompetent summary judgment evidence

and are neither credible nor susceptible to being readily controverted. 37 Thus,

Dodson’s affidavit testimony is insufficient to raise a question of fact. 38 To show

the tolling of limitations on the ground that Dodson is of unsound mind, he was

not required to show that he had been adjudicated incompetent. 39 But he was

required to produce some competent summary judgment evidence raising a fact

issue.        Dodson produced no other evidence to refute Ford’s evidence that,

although Dodson suffered from mental illness and had a low IQ, he was not of

unsound mind at the time his cause of action accrued.

         36
          See Ruiz, 868 S.W.2d at 755.
         37
        Residential Dynamics, LLC, 186 S.W.3d at 198; see also Mercer v.
Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984) (stating that “[a] legal conclusion
in an affidavit is insufficient to raise an issue of fact in response to a motion for
summary judgment or to establish the existence of a fact in support of a motion
for summary judgment”).
         38
      See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Souder v.
Cannon, 235 S.W.3d 841, 849 (Tex. App.—Fort Worth 2007, no pet.).
         39
         See Casu v. CBI Na-Con, Inc., 881 S.W.2d 32, 34 (Tex. App.—Houston
[14th Dist.] 1994, no writ) (stating that to toll limitations on the ground that the
plaintiff is incompetent, the plaintiff need not have been adjudicated
incompetent); see also Smith v. Erhard, 715 S.W.2d 707, 708 (Tex. App.—Austin
1986, writ ref’d n.r.e.) (“The mental state contemplated by this statute [tolling the
running of limitations] is ordinarily a question of fact and does not necessarily
contemplate an adjudication of insanity.”).


                                         16
      Because Dodson did not produce sufficient summary judgment evidence to

rebut Ford’s prima facie showing, the trial court did not err by granting summary

judgment on limitations. We overrule Dodson’s second issue. Accordingly, we

do not need to address Dodson’s third issue asserting that the trial court erred by

granting summary judgment on the ground that there was no evidence that he

had been exonerated.

      In Dodson’s first issue, he argues that the trial court abused its discretion

by not appointing counsel and denying Dodson’s motion for appointed counsel

when the record showed that Dodson presented unrebutted medical evidence

that he has been diagnosed with mental illness and borderline mental

retardation. We review a trial court’s failure to appoint trial counsel in a civil case

for an abuse of discretion. 40

      The Supreme Court has never held that a civil litigant must be represented

by counsel, but it has “suggested . . . that under exceptional circumstances, ‘the

public and private interests at stake [may be] such that the administration of

justice may best be served by appointing a lawyer to represent an indigent civil

litigant.’” 41 What is “exceptional” under this standard is “by definition rare and

unusual—something not easily identified by a general rule.” 42


      40
        See Gibson v. Tolbert, 102 S.W.3d 710, 712–13 (Tex. 2003).
      41
        Id. at 712.
      42
        Id. at 713.


                                          17
       The nature of the case—legal malpractice—is not rare or unusual, and the

public and private interests at stake are not so exceptional that the administration

of justice would be served by appointment counsel. 43 The only other ground on

which the trial court could have found exceptional circumstances is Dodson’s

mental illness or low IQ. But the record does not show that his mental illness or

borderline intellectual functioning had any effect on his ability to communicate

with the trial court. 44

       Dodson cites Jackson v. Dallas Police Dep’t for the proposition that a trial

court denying appointment of counsel in a civil case must consider certain factors

and must present specific findings explaining why counsel was denied. 45 As

noted in Jackson, the Fifth Circuit has held that appointment of counsel should

be made in § 1983 cases where “exceptional circumstances” are present, and

the court directs district courts to consider four factors in determining whether to

appoint counsel for an indigent plaintiff. 46 Dodson has cited no authority for the

proposition that Fifth Circuit rules and procedures for appointment of counsel in


       43
         See id.
       44
        See Rogers v. Franklin, No. 02-07-00114-CV, 2008 WL 1867151, at *5
(Tex. App.—Fort Worth Apr. 24, 2008, no pet.) (mem. op.) (stating that nothing in
the record demonstrated the severity of Rogers’s alleged mental disorder or its
effect on his ability to communicate with the trial court).
       45
         811 F.2d 260, 262 (5th Cir. 1986).
       46
        See id. at 261–62; see also Robbins v. Maggio, 750 F.2d 405, 412 (5th
Cir. 1985).


                                        18
civil suits apply to state court actions. The Fifth Circuit rules for appointment of

counsel in federal cases do not apply to actions brought in state court, 47 but even

if they did, we have already held that exceptional circumstances do not exist in

this case.   Accordingly, Dodson’s argument based on federal precedent is

unpersuasive.

      In Dodson’s fourth and final issue, he argues that the trial court abused its

discretion by not ruling on his “Next Friend’s Motion for Recognition and Request

for Finding And/Or Determinations for Noncompos Mentis of Plaintiff.” He argues

that the trial court “abused its discretion because the record would have shown

that [Dodson] was incompetent[,] and he would have used a defense of statu[t]e

of limitation[s] of not being competent.”

      Brewer filed a request to be recognized as next friend and to have a

hearing to determine Dodson’s competence for purposes of Brewer’s

appointment as next friend. Brewer stated that he had “clearly been past [sic]

over, or had not been acknowledged by the court nor by Defendant.”               He

asserted that his “responsibility in protecting [Dodson’s] rights in this cause have

been impinged or infringed upon by the failure of this honorable court and

Defendant to include next friend in the activities of the Prosecution and defense

      47
         Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993)
(stating that Texas courts may draw upon the precedents of the Fifth Circuit but
are not obligated to do so); see also Wion v. Thayler, No. 10-09-00369-CV, 2010
WL 4644497, at *4 (Tex. App.—Waco Nov. 17, 2010, no pet.) (mem. op.)
(pointing out that the Fifth Circuit method for reviewing the denial of appointing
counsel is used when a civil case is filed in federal court, not state court).


                                            19
of this case.” He asserted the rights given under civil procedure rule 44. 48 No

ruling on the motion appears in the record. Neither Dodson nor Brewer set the

motion for a hearing. 49

      In the motion, Dodson did not ask the trial court to order a competence

determination for purposes of gathering evidence that he was of unsound mind to

raise a fact issue to defeat summary judgment. Nor did he point to any authority

that would have required or even allowed the trial court to do so.            The

competence determination asked for in the motion was specifically requested for

purposes of showing that Brewer should be allowed to act as next friend. The

trial court considered Dodson’s summary judgment response, which was filed by

Brewer. Even if the trial court did not expressly recognize Brewer as Dodson’s

next friend, he did consider the filings that Brewer made on Dodson’s behalf.

Accordingly, Dodson has not shown that he was harmed by the trial court’s

failure to rule on the motion. 50 We overrule Dodson’s fourth issue.


      48
        See Tex. R. Civ. P. 44 (providing that “persons non compos mentis who
have no legal guardian may sue and be represented by ‘next friend’” and that
“[s]uch next friend shall have the same rights concerning such suits as guardians
have”).
      49
       See Tex. R. App. P. 33.1; see also Quintana v. CrossFit Dallas, L.L.C.,
347 S.W.3d 445, 449 (Tex. App.—Dallas 2011, no pet.) (“As a prerequisite to
complaining on appeal about the denial of a motion, however, the record must
show that the motion was brought to the trial court’s attention and that the trial
court either denied the motion or refused to rule on the motion and the
complaining party objected to the refusal.”).
      50
        See Tex. R. App. P. 44.1.


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                              Conclusion

     Having overruled each of Dodson’s issues, we affirm the trial court’s

judgment.




                                             LEE ANN DAUPHINOT
                                             JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DELIVERED: September 26, 2013




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