Affirm and Opinion Filed July 3, 2013




                                           S In The
                                       Court of Appeals
                                Fifth District of Texas at Dallas

                                        No. 05-12-00024-CV

                            RICKEY WAYNE TOLBERT, Appellant
                                          V.
                               GEORGE A. OTSTOTT, Appellee

                         On Appeal from the 191st Judicial District Court
                                      Dallas County, Texas
                                Trial Court Cause No. 10-05400

                                  MEMORANDUM OPINION

                           Before Justices Bridges, FitzGerald, and Myers
                                   Opinion by Justice FitzGerald

          Appellant Rickey Wayne Tolbert sued his former attorney, appellee George A. Otstott,

on various causes of action including legal malpractice. The trial judge granted appellee a take-

nothing summary judgment based on the defense of statute of limitations. Tolbert appeals. We

affirm.

                                         I. BACKGROUND

          Appellant is an inmate in the Texas prison system. Acting pro se, appellant sued appellee

in April 2010. He alleged that appellee had represented appellant as the claimant in three

personal-injury matters and that appellee had settled all three matters without appellant’s

knowledge or consent. He further alleged that he, appellant, had been incarcerated at the time of

all three settlements.     Appellant alleged four claims arising from this set of facts: legal
malpractice, intentional infliction of emotional distress, negligent infliction of emotional distress,

and “civil rights violations.” The first paragraph of appellant’s petition indicates that his civil-

rights claim is based on 42 U.S.C. § 1983 and on alleged violations of his rights under the Sixth

and Fourteenth Amendments to the United States Constitution, as well as alleged violations of

the Texas Constitution.

       Appellee moved for summary judgment based on the statute of limitations. We discuss

his evidence in detail below; for now it suffices to say that appellee argued that he represented

appellant in three personal-injury matters from 1987 to 1991, that all three of the matters settled

with appellant’s knowledge and approval, and that the last of the three matters settled in August

1991. Appellee argued that appellant’s 2010 lawsuit was manifestly time-barred under these

facts. Appellant filed a response to the summary-judgment motion. The trial judge held a

hearing on the motion, at which appellant appeared by telephone. The judge granted summary

judgment for appellee.

       Appellant timely appealed. In one issue, he argues that the trial judge erred by granting

summary judgment in favor of appellee.

                                          II. ANALYSIS

A,     Standard of review and applicable law

       We review a summary judgment de novo. Smith v. Deneve, 285 S.W.3d 904, 909 (Tex.

App.—Dallas 2009, no pet.). When we review a traditional summary judgment in favor of a

defendant, we determine whether the defendant conclusively disproved an element of the

plaintiff’s claim or conclusively proved every element of an affirmative defense. Am. Tobacco

Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Smith, 285 S.W.3d at 909. We must take

evidence favorable to the nonmovant as true, and we must indulge every reasonable inference

and resolve every doubt in favor of the nonmovant. Sysco Food Servs., Inc. v. Trapnell, 890


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S.W.2d 796, 800 (Tex. 1994); Smith, 285 S.W.3d at 909. A matter is conclusively established if

ordinary minds could not differ as to the conclusion to be drawn from the evidence. In re Estate

of Hendler, 316 S.W.3d 703, 707 (Tex. App.—Dallas 2010, no pet.).

       If a summary-judgment movant relies on the defense of statute of limitations, he must (1)

prove conclusively when the cause of action accrued, 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 his injury. Equitable Recovery, L.P. v. Heath Ins.

Brokers of Tex., L.P., 235 S.W.3d 376, 385 (Tex. App.—Dallas 2007, pet. dism’d). For purposes

of the discovery rule, “discovery” occurs when a plaintiff has knowledge of such facts as would

cause a reasonably prudent person to make an inquiry that would lead to discovery of the cause

of action. Haidar v. Nortex Found. Designs, Inc., 239 S.W.3d 924, 926 (Tex. App.—Dallas

2007, no pet.). Said another way, knowledge of facts, conditions, or circumstances that would

cause a reasonable person to make inquiry leading to the discovery of the cause of action is

equivalent to knowledge of the cause of action for limitations purposes. Id. at 927.

       The limitations period for legal-malpractice claims is two years, and the discovery rule

applies. Sarno v. Marsaw & Assocs. PC, No. 05-10-01146-CV, 2012 WL 1154478, at *2 (Tex.

App.—Dallas Apr. 5, 2012, no pet.) (mem. op.). The limitations period for intentional infliction

of emotional distress is two years. GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 619 (Tex. 1999);

Hair v. Pillsbury Co., No. 05-01-01354-CV, 2002 WL 1494922, at *5 (Tex. App.—Dallas July

15, 2002, no pet.) (not designated for publication). Texas does not recognize a cause of action

for negligent infliction of emotional distress. Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex. 1993).

Accordingly, we will not address that claim separately from appellant’s legal-malpractice claim,

which is itself based on negligence. See Pierre v. Steinbach, 378 S.W.3d 529, 533 (Tex. App.—

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Dallas 2012, no pet.). The statute of limitations for appellant’s § 1983 claim is two years. See

Price v. City of San Antonio, 431 F.3d 890, 892 (5th Cir. 2005); Ogletree v. Glen Rose I.S.D.,

314 S.W.3d 450, 454 (Tex. App.—Waco 2010, pet. denied). We need not decide whether the

discovery rule applies to appellant’s claim for intentional infliction of emotional distress or his

claim under § 1983; as discussed below, his claims are time-barred even if the discovery rule

applies to those claims.

B.     Analysis of the summary-judgment evidence

       Appellant filed suit on April 27, 2010. Accordingly, the question presented is whether

the evidence shows conclusively that appellant possessed knowledge of facts before April 27,

2008, that would have caused a reasonable person to make inquiry and discover his cause of

action. See Haidar, 239 S.W.3d at 926, 927.

       Appellee relied on his affidavit, in which he testified to the following facts. First,

appellee represented appellant in connection with an injury claim against Flexible Foam arising

from a 1987 workplace incident. The Flexible Foam matter was settled at appellant’s direction

while he was incarcerated, appellant signed a settlement agreement, and appellant’s share of the

settlement funds was placed in his inmate trust account on March 15, 1988. Next, appellee

represented appellant in connection with an injury claim against Madix Corporation arising from

a 1990 workplace incident. The Madix matter was settled at appellant’s direction, appellant

signed a settlement agreement, and a check for appellant’s share of the settlement funds was

delivered to appellant on April 22, 1991. Finally, appellee represented appellant in connection

with a 1991 vehicle-accident claim. The case settled, and appellant endorsed the final settlement

check on August 5, 1991.       Appellee also relied on appellant’s responses to requests for

admissions, in which appellant stated, “I did receive a check in 1991, for [$]1,012.92 from Mr.

Otstott[’s] office,” and “I received [$]1,012.92 for an auto accident.” Finally, appellee also


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relied on a letter from appellant to appellee dated July 20, 2008, in which appellant stated that he

had not heard from appellee about his claim against Flexible Foam since 1988, and he further

stated, “I have had no correspond[e]nce with you or a member of your firm since” receiving a

$1,000 check from appellee’s office in 1991. Appellee’s evidence tends to show that appellant

knew or should have known about his alleged injuries no later than the dates he received the

settlement funds, the last of which was August 5, 1991.

       Next we review appellant’s evidence, which consisted of his declaration under penalty of

perjury and a copy of a letter from appellee to appellant dated September 19, 2008. In the letter,

appellee stated that all three of appellant’s matters were settled prior to lawsuits being filed, that

the cases were settled at appellant’s direction, and that appellant received all settlement funds to

which he was entitled. In his declaration under penalty of perjury, appellant stated that he did

not sign a settlement of his claim against Flexible Foam, did not give appellee consent to settle

that claim, and assumed that his claim against Flexible Foam was pending in court. As to his

claim against Madix Corporation, appellant stated that he never signed a settlement of that claim,

that he never received any funds for that claim, and that no one ever communicated with him at

all concerning that claim. As to his claim arising from the 1991 vehicle accident, appellant

stated that the claim was settled without his consent. As to this claim, he admitted, “I endorsed a

check for [$]1,012.92. I ‘was not’ told that the check was for my portion of the settlement

agreement of $2,500.00.” Appellant argues that September 19, 2008—the date of appellee’s

letter to him—is when he discovered his injury and when the statute of limitations started to run.

       We conclude that the evidence conclusively shows that a reasonably diligent person in

appellant’s position would have discovered his injury before April 27, 2008, and thus more than

two years before appellant filed suit. Viewed in the light most favorable to appellant, the

evidence shows that he retained appellee to represent him as a claimant in three personal-injury

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matters spanning from 1987 to 1991. Appellee did not file a lawsuit in any of those matters.

Appellant’s declaration supplies some evidence that appellee settled all three matters without

appellee’s consent; appellee’s affidavit establishes that the last of the three settlements was

concluded in August 1991. The evidence further establishes that appellee did not communicate

with appellant at all from August 5, 1991, when appellant received a $1,012 check from

appellee’s law office, through September 19, 2008, when appellee wrote appellant a letter

advising that all three cases had been settled. That is, by April 27, 2008, appellant had received

no communications from appellee for a period of more than sixteen years.

       Appellant’s receipt of money from appellee’s office in August 1991 would have put a

reasonably diligent person on notice that at least one of his claims had been disposed of. Over

sixteen years then passed with no communications from appellee.          As a matter of law, a

reasonably diligent person, after receiving the $1,012 check from appellee’s law firm in August

1991 and then hearing nothing further, would have investigated and discovered before April

2008 that appellee had settled appellant’s three claims without filing lawsuits as to any of them.

We need not decide exactly when in a span of over sixteen years a reasonably diligent person

would have discovered his injury; it suffices to conclude that any reasonable person would have

to find that appellant’s knowledge of the 1991 payment, followed by the lapse of over sixteen

years without any communication from appellee, constitutes knowledge of facts and

circumstances that would have caused a reasonably diligent person to make inquiry and discover

the truth before April 27, 2008. Cf. Md. Cas. Co. v. Evans, No. 03-96-00217-CV, 1997 WL

184350, at *4 (Tex. App.—Austin Apr. 17, 1997, writ denied) (not designated for publication)

(“We do not need to determine the exact date of accrual, as suit was not filed until well outside

the limitations period.”).




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                                     III. DISPOSITION

      For the foregoing reasons, we affirm the trial court’s judgment.


                                                   /Kerry P. FitzGerald/
120024F.P05                                        KERRY P. FITZGERALD
                                                   JUSTICE




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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                         JUDGMENT

RICKEY WAYNE TOLBERT, Appellant                      On Appeal from the 191st Judicial District
                                                     Court, Dallas County, Texas
No. 05-12-00024-CV         V.                        Trial Court Cause No. 10-05400.
                                                     Opinion delivered by Justice FitzGerald.
GEORGE A. OTSTOTT, Appellee                          Justices Bridges and Myers participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee GEORGE A. OTSTOTT recover his costs of this appeal
from appellant RICKEY WAYNE TOLBERT.


Judgment entered July 3, 2013




                                                     /Kerry P. FitzGerald/
                                                     KERRY P. FITZGERALD
                                                     JUSTICE




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