                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-10-00446-CV


STEVEN CHARLES RUSSO                                           APPELLANT

                                         V.

DEREK A. ADAME                                                   APPELLEE


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         FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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                       MEMORANDUM OPINION1
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                                  I. Introduction

     In two points, Appellant Steven Charles Russo appeals the trial court’s

order granting Appellee Derek Adame’s motion for summary judgment.      We

reverse and remand.




     1
      See Tex. R. App. P. 47.4.
                   II. Procedural and Factual Background

      Russo, an inmate, sued Adame for allegedly libelous statements that

Adame made in a court-ordered affidavit related to Russo’s application for a writ

of habeas corpus. In his application for writ of habeas corpus, Russo alleged

that Adame rendered ineffective assistance in Russo’s criminal case.

      Adame filed his affidavit in the habeas corpus case on February 19, 2009.

The Denton County District Attorney’s Office forwarded a copy of the affidavit to

Russo on March 11, 2009. The mail room of the Hightower Unit, where Russo

was housed, received the document on March 12, 2009, and notified Russo that

he could collect his mail the next day. Russo received a copy of the affidavit on

March 13, 2009, and filed a ―Request for Citation‖ with the Denton County District

Clerk on March 15, 2010. The document stated that Russo was ―the Plaintiff of

the accompanying claim of libel‖ against Adame.2

      On May 26, 2010, the district clerk, in a response to a letter from Russo,

stated that Russo’s petition had been mistakenly filed under Russo’s criminal

cause number. The district clerk said that she would file a civil case but that

before she could do so, Russo would need to submit the filing fee or an affidavit

of indigence. Russo filed an affidavit of indigence on June 14, 2010.




      2
      Although the copy of Russo’s ―Libel Claim‖ contained in the record is
dated as filed on June 14, 2010, the district clerk, in her May 26 letter,
acknowledged receipt of Russo’s libel claims on March 15, 2010. We refer to the
request and libel claim collectively as Russo’s ―petition.‖

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      Adame answered Russo’s petition, pleading affirmative defenses of

limitations and privilege. Adame then filed a motion for summary judgment, but

only on the ground of limitations. The trial court granted Adame’s motion, and

Russo appealed.3

                            III. Standard of Review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant is entitled to

summary judgment on an affirmative defense if the defendant conclusively

proves all the elements of the affirmative defense.         Frost Nat’l Bank v.

Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010), cert. denied, 131 S. Ct. 1017

(2011); see Tex. R. Civ. P. 166a(b), (c). To accomplish this, the defendant-

movant must present summary judgment evidence that conclusively establishes



      3
        The 211th district court also sustained Dr. Kelly Goodness’s plea to the
jurisdiction on Russo’s claim of libel that he brought based on statements of hers
that Adame quoted in his affidavit. That case was also brought before us, and
our opinion in that case has issued this day. Russo v. Goodness, No. 02-10-
00330-CV (Tex. App.—Fort Worth May 26, 2011, no pet. h.).

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each element of the affirmative defense. See Chau v. Riddle, 254 S.W.3d 453,

455 (Tex. 2008).

                                 IV. Discussion

        In his first point, Russo argues that summary judgment based on

limitations was improper; we agree. The limitations period on a libel claim is one

year.    Tex. Civ. Prac. & Rem. Code Ann. § 16.002(a) (Vernon 2002). The

discovery rule may apply to libel causes of action when the matter is not public

knowledge.    Kelley v. Rinkle, 532 S.W.2d 947, 949 (Tex. 1976).         When the

discovery rule applies, it defers the accrual of a cause of action until a plaintiff

discovers or, through the exercise of reasonable care and diligence, should

discover the nature of the injury. Childs v. Haussecker, 974 S.W.2d 31, 37 (Tex.

1998). Because the filings in this lawsuit were not made public knowledge, such

as through broadcast media, we believe the discovery rule should apply here.

See Kelley, 532 S.W.2d at 949 (―We would not apply the discovery rule where

the defamation is made a matter of public knowledge through such agencies as

newspapers or television broadcasts.‖).

        Russo based his libel claim on Adame’s February 19, 2009 affidavit.

Because he was incarcerated at that time, Russo did not receive a copy of the

affidavit until March 13, 2009. In his response to Adame’s summary-judgment

motion, Russo included a ―copy‖ of a March 11, 2009 letter from the Denton

County District Attorney, which stated that it included a copy of Adame’s affidavit.

Russo also included a ―copy‖ of the Hightower Unit’s mail room notice dated

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March 12, 2009, that instructed him to go to the mail room on March 13, 2009, to

pick up his mail.4 Because he was incarcerated, Russo had no independent

means to discover the injurious statements prior to his receipt of the March 11

letter. We therefore hold that the discovery rule deferred the accrual of Russo’s

cause of action until March 13, 2009, the date Russo was first able to discover

the injury.

       Under section 16.002(a) of the civil practice and remedies code, Russo

had one year from the date the injury accrued to file his cause of action. See

Tex. Civ. Prac. & Rem. Code Ann. § 16.002(a). But because March 13, 2010

was a Saturday, the limitations period ended on March 15, 2010. See Tex. R.

Civ. P. 4. The clerk’s office received Russo’s petition on this date. And, even

though the petition was originally misfiled, the clerk told Russo that it would file

the petition as a civil case when Russo paid the filing fee or filed an affidavit of

indigency. Russo complied, and the civil case was filed June 14, 2010.

       Adame argues that because the new matter was not created until June 14,

2010, Russo’s petition was not timely filed.       Russo argues that he timely

submitted his petition and that any error of the clerk’s office should not be

attributable to him.    The clerk’s office has admitted that the petition was

―inadvertently‖ filed under the wrong cause, and it apologized to Russo ―for the



       4
       The ―copies‖ of the March 11, 2009 letter and the mail room notice are
handwritten, not photocopies of the original documents. However, Adame does
not dispute any of these dates.

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oversight.‖ However, the clerk’s office told Russo that it would not file the petition

as a new matter until Russo paid the filing fee or filed an affidavit of indigence.

         If a document is filed without paying the filing fee, it is considered

―conditionally filed‖ on the date it was tendered to the clerk. Tate v. E.I. DuPont

de Nemours & Co., 934 S.W.2d 83, 84 (Tex. 1996). When the fee is paid, the

petition is deemed filed on the date it was originally tendered.            Jamar v.

Patterson, 868 S.W.2d 318, 319 (Tex. 1993). We see no reason why the rule

should be different for those filing affidavits of indigency. See Houser v. Allen,

No. 09-07-00106 CV, 2008 WL 2058162, at *4–5 (Tex. App.—Beaumont May 15,

2008, pet. denied) (mem. op.) (holding that plaintiff’s petition was filed when he

tendered it to the court, even though it was returned unfiled because he

submitted it without a statement of his inmate trust account, and plaintiff later

provided the statement). Russo filed an affidavit of indigency; thus, Russo’s

petition is deemed filed on March 15, 2010, the date it was originally tendered to

the court. As such, it was timely. Because Adame did not move for summary

judgment on any other grounds but limitations, the trial court erred by granting his

motion for summary judgment. See State Farm Lloyds v. Page, 315 S.W.3d 525,

532 (Tex. 2010) (―Summary judgment may not be affirmed on appeal on a

ground not presented to the trial court in the motion.‖). We sustain Russo’s first

point.




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                                 V. Conclusion

      Having sustained Russo’s first point, we reverse the trial court’s judgment

and remand the case for further proceedings consistent with this opinion.5



                                                  PER CURIAM

PANEL: MCCOY, WALKER, and GABRIEL, JJ.

DELIVERED: May 26, 2011




      5
       Because Russo’s first point is dispositive, we need not reach his second
point. See Tex. R. App. P. 47.1. We also deny Russo’s ―Motion for Sanctions
Against Defendant’s Frivolous Amended Motion.‖

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