Opinion filed July 11, 2019




                                               In The


            Eleventh Court of Appeals
                                           __________

                                     No. 11-17-00203-CV
                                         __________

                             YAMIL LUCIANO, Appellant
                                                   V.
                               FAITH SLOCUM, Appellee


                    On Appeal from the County Court at Law No. 2
                               Midland County, Texas
                          Trial Court Cause No. CC18593


                          MEMORANDUM OPINION
        Yamil Luciano filed a malicious prosecution suit against Faith Slocum, his
former wife. Because it found that the claim was time-barred, the trial court granted
a summary judgment in favor of Slocum and dismissed Luciano’s lawsuit with
prejudice. Luciano filed this pro se appeal from that summary judgment. We affirm.
        Luciano and Slocum were at one time married. They were later divorced, and
the divorce proceedings were somewhat less than friendly. 1

        1
           The divorce case was the subject of another pro se appeal by Luciano to this court. We affirmed
the trial court’s judgment. See Luciano v. Luciano, No. 11-15-00280-CV, 2017 WL 6559656 (Tex. App.—
Eastland Dec. 21, 2017, no pet.) (mem. op.).
      On February 4, 2014, J. Morales, a peace officer, filed a criminal complaint
against Luciano, with Slocum’s approval, for the offense of stalking, and the police
subsequently arrested him. The stalking charge was related to Luciano’s actions
toward Slocum and one of the parties’ children.
      The following month, on March 12, 2014, a grand jury “no-billed” Luciano
on the stalking charge. On March 19, 2014, the justice court entered an order by
which it dismissed the stalking case.
      Just over two years later, according to a March 30, 2016 file mark of the
district clerk of Midland County, Luciano filed a malicious prosecution lawsuit
against Slocum. Luciano based his lawsuit on the 2014 stalking charge.
      Slocum filed a motion for summary judgment based upon her pleaded
affirmative defense of limitations. Slocum asserted that a claimant in a malicious
prosecution lawsuit must file it within one year of the date that the cause of action
accrues. She maintained that the cause of action accrued on March 12, 2014, the
date that the grand jury no-billed Luciano, or at least on March 19, 2014, when the
justice court signed the order of dismissal. Slocum takes the same position in this
appeal.
      Luciano filed a motion for partial summary judgment. In his motion, Luciano
took the position that limitations had not expired, that the discovery rule applied, and
that his own lawyer fraudulently concealed the fact that the stalking charge had been
dismissed.
      We review summary judgments de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Under the well-
established standards governing traditional motions for summary judgment, the
movant must show that there is no genuine issue of material fact and that the movant
is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr.
Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). We take as true all evidence
                                           2
favorable to the nonmovant, and we indulge every reasonable inference and resolve
any doubts in the nonmovant’s favor. Provident Life & Accident Ins. Co. v. Knott,
128 S.W.3d 211, 215 (Tex. 2003). “We review a summary judgment for evidence
that would enable reasonable and fair-minded jurors to differ in their conclusions.”
Wal–Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam).
      When both sides in a lawsuit move for summary judgment and the trial court
grants one of the motions and denies the other, we are to review both sides’ summary
judgment evidence and determine all questions that the parties present. FM Prop.
Op. Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). Here, the trial court
granted Slocum’s motion for summary judgment upon the specified ground that
limitations barred Luciano’s claim for malicious prosecution. Although the trial
court did not expressly overrule Luciano’s motion for partial summary judgment, it
effectively did so when it granted Slocum’s motion—on the same theory that
Luciano argued in his motion—and dismissed Luciano’s lawsuit with prejudice.
      In Luciano’s first of seven issues on appeal, he asks: “Did the court admit all
[Luciano’s] evidence objected to [by Slocum] when it stated ‘I’m taking all of his
arguments into account’?” In Luciano’s second issue on appeal, he asks: “Did the
court err in not allowing a rehearing to correct defects in form to summary judgement
[sic] evidence after objection was raised?” However, Luciano claims in his brief
that “[t]he record shows that the trial court considered all the evidence that [he]
submitted and as such is admitted into evidence for summary judgement [sic] proof.”
Although much of Luciano’s summary judgment evidence was improper, the trial
court was more than fair to Luciano when, as Luciano states, it considered the
evidence anyway.     Even if the trial court somehow erred when it considered
Luciano’s improper summary judgment evidence, we cannot see how Luciano was
harmed. See TEX. R. APP. P. 44.1(a)(1) (no reversal unless error “probably caused


                                         3
the rendition of an improper judgment”). We overrule Luciano’s first and second
issues on appeal.
      In his fourth issue on appeal, Luciano poses the question: “Did the court err
in overruling objection to Appellee’s evidence when the notary is the same as the
affiant?” Luciano refers to a document that is signed by Pamela Renee Brown and
attached to Slocum’s motion for summary judgment. The document reflects that
Brown is the custodian of records for Precinct 3 in Midland County. She has
attached what she asserts to be “a true and correct copy of Cause No. F3140038 State
of Texas vs. Yamil Luciano Motion to Dismiss and Order signed by the Judge of
Justice Court Precinct 3, Midland County, Texas.” The document is denominated
“Affidavit” but is both signed and notarized by Brown. Luciano lodged an objection
to the “Affidavit” because Brown also signed the document as the notary. In her
brief, Slocum refers to the document as a “[d]eclaration.”
      Copies of documents must be authenticated before a court may consider the
documents to be competent summary judgment evidence. TEX. R. CIV. P. 166a(c)
(authenticated or certified public records are proper summary judgment evidence);
In re Estate of Guerrero, 465 S.W.3d 693, 703 (Tex. App.—Houston [14th Dist.]
2015, pet. denied) (en banc). To properly authenticate a document, the proponent
must “produce evidence sufficient to support a finding that the item is what the
proponent claims it is.”     TEX. R. EVID. 901(a).      Some documents are self-
authenticating, such as certified copies of public records or public documents that
are sealed and signed. TEX. R. EVID. 902(2), (4). The operative document here is
the order of dismissal. We have examined the document executed by Brown, as well
as the attachment to it. We believe that Slocum has produced evidence that
sufficiently supports a finding that the order is what it purports to be. We overrule
Luciano’s fourth issue on appeal.


                                         4
      In Luciano’s third issue on appeal, he claims that the trial court erred when it
granted Slocum’s motion for summary judgment because Slocum did not
conclusively show that there was no triable issue of fact. In his fifth issue on appeal,
Luciano asks: “Did the court properly file the complaint on 03/30/16 when the
Petitioner submitted the filing on 03/24/16?” In his sixth issue on appeal, Luciano
maintains that the discovery rule applies because the dismissal was not a matter of
public record until after limitations had expired. All these issues will be resolved
next when we determine whether Luciano’s lawsuit is time-barred.
      When a defendant moves for summary judgment on the affirmative defense
of limitations, the defendant must conclusively prove when the cause of action
accrued and must also “negate the discovery rule, if it applies and has been pleaded
or otherwise raised.” KPMG Peat Marwick v. Harrison Cty. Housing Fin. Corp.,
988 S.W.2d 746, 748 (Tex. 1999). However, the discovery rule does not apply to
claims for malicious criminal prosecution. See Lang v. City of Nacogdoches, 942
S.W.2d 752, 758 (Tex. App.—Tyler 1997, writ denied) (discovery rule does not
apply to a malicious prosecution claim where plaintiffs had access to public record
and dismissal of criminal case against plaintiffs was a matter of public record and
either plaintiffs or their attorneys could have discovered the dismissal by an
examination of the public records). Malicious prosecution cases “do not fall into the
rare class of cases where the discovery rule applies.” Patrick v. Howard, 904 S.W.2d
941, 945 (Tex. App.—Austin 1995, no writ). If the defendant establishes that
limitations bars a cause of action, the plaintiff must present summary judgment
evidence that raises a fact issue in avoidance of limitations. KPMG Peat Marwick,
988 S.W.2d at 748. The discovery rule is a matter in avoidance of limitations.
Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex. 1988).
      The limitations period begins to run when a cause of action accrues; the date
of accrual is normally a question of law. Holy Cross Church of God in Christ v.
                                           5
Wolf, 44 S.W.3d 562, 567 (Tex. 2001); Moreno v. Sterling Drug, Inc., 787 S.W.2d
348, 351 (Tex. 1990). In a malicious prosecution case, a cause of action accrues, or
limitations begin to run, when the criminal prosecution ends. TEX. CIV. PRAC. &
REM. CODE ANN. §16.002 (West 2017); Patrick, 904 S.W.2d at 943.
      The summary judgment evidence in this case shows that the criminal
prosecution ended at least when the trial court dismissed the stalking case on March
19, 2014. The dismissal was a part of the records of the Justice Court of Precinct 3
in Midland County and could have been discovered by Luciano or his attorney.
(CR124-125). Under the circumstances of this case, the discovery rule does not
provide Luciano with a way to avoid the application of limitations. Regardless of
whether Luciano filed his malicious prosecution lawsuit on March 24, 2016, as he
maintains, or on March 30, 2016, as the clerk’s file stamp shows, he filed it too late
and the claim is barred by limitations. We overrule Luciano’s third, fifth, and sixth
issues on appeal.
      Finally, in his seventh issue on appeal, Luciano makes the claim that his own
lawyer fraudulently concealed, until limitations had run, the fact that the stalking
charge had been dismissed. “The elements of fraudulent concealment are (1) the
existence of the underlying tort, (2) the defendant’s knowledge of the tort, (3) the
defendant’s use of deception to conceal the tort, and (4) the plaintiff’s reasonable
reliance on the deception.” Malone v. Sewell, 168 S.W.3d 243, 251 (Tex. App.—
Fort Worth 2005, pet. denied). The doctrine of fraudulent concealment tolls or
suspends the running of limitations after it has begun because the defendant
concealed from the plaintiff facts necessary for the plaintiff to know that a cause of
action existed. Id. One who asserts fraudulent concealment in defense of a claim of
limitations has the burden to come forward with evidence that raises an issue of fact
with respect to fraudulent concealment. Am. Petrofina, Inc. v. Allen, 887 S.W.2d
829, 830 (Tex. 1994).
                                          6
        Luciano alleged in the trial court, and maintains in this appeal, that his own
attorney, not Slocum, fraudulently concealed the dismissal of the stalking charge.
Even if we consider, as the trial court did, all the purported evidence submitted by
Luciano, there is nothing in this record to show that Slocum fraudulently concealed
the dismissal of the stalking charge. We overrule Luciano’s seventh issue on appeal.
        We affirm the judgment of the trial court.




                                                           JIM R. WRIGHT
                                                           SENIOR CHIEF JUSTICE


July 11, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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