IN THE
TENTH COURT OF APPEALS
No. 10-97-256-CV
MANUEL ALCOSER, JR.,
Appellant
v.
GARY L. JOHNSON,
Appellee
From the 52nd District Court
Coryell County, Texas
Trial Court # 31006
O P I N I O N
Appellant Alcoser appeals from an order of the trial court dismissing his pro se informa pauperis action as frivolous.
Appellant, a prison inmate, filed suit to mandamus Appellee, Custodian of Public Records for the Texas Department of Criminal Justice, to make available to Appellant his records "pertaining to classification file, for inspection and possible duplication." Appellant alleged that Appellee denied him the requested information and in so doing abused his discretion.
The trial court dismissed Appellant's case as frivolous pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code.
Appellants appeals contending his action is not frivolous because government officials have a duty required by law to furnish him the requested records.
Appellant filed a pauper's affidavit pursuant to Rule 145, Texas Rules of Civil Procedure. Chapter 14, § 14.003, Texas Civil Practice and Remedies Code, applies to suits brought by an inmate who has filed an affidavit of inability to pay costs. Section 14.003(a) allows a court to dismiss a suit, before or after process is served, if the court finds (1) the allegation of poverty is false, (2) the claim is frivolous or malicious, or (3) the inmate filed an affidavit or unsworn declaration required by Chapter 14 that the inmate knew was false. In determining whether a claim is frivolous or malicious, the court may consider whether (1) the claim's realistic chance of ultimate success is slight, (2) the claim has no arguable basis in law or fact, (3) it is clear the party cannot prove facts in support of the claim, or (4) the claim is substantially similar to a previous claim filed by the inmate.
Section 14.004 requires the inmate to file a separate affidavit or declaration identifying each prior suit brought by the inmate, specifying the operative facts, the case name, the case number, the court in which it was brought, the names of the parties and the results of the suit. Id. § 14.004(a). This section further requires the inmate to file a certified copy of his trust account statement from the department. Id. § 14.004(c).
Our review of a dismissal under Chapter 14 is controlled by the abuse-of-discretion standard. Abuse of discretion is determined by whether the court acted without reference to any guiding principles. Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex 1939).
Appellant's petition was not accompanied by the affidavit or unsworn declaration required by Section 14.004, Texas Civil Practice and Remedies Code.
Chapter 14 was designed to control the flood of frivolous lawsuits being filed by prison inmates consuming valuable judicial resources with little offsetting benefit. Hickson v. Moya, 926 S.W.2d 397 (Tex. App.—Waco 1996, no writ).
The supplemental filing required by Section 14.004 is designed to assist the court in making determinations the Legislature called upon it to make; thus, it is an essential part of the process by which the courts review inmate cases.
Because the court can dismiss when an inmate files a false affidavit or declaration, that same policy allows a court to dismiss a suit that is filed without the affidavit or declaration. Hickson, supra.
The trial court did not abuse its discretion in dismissing Appellant's suit. The order of the trial court is affirmed.
FRANK G. McDONALD
Chief Justice (Retired)
Before Chief Justice Davis,
Justice Vance and
Chief Justice McDonald (Retired)
Affirmed
Opinion delivered and filed October 29, 1997
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'CG Times', serif"> In his first point of error, Shook complains the trial court erred in granting summary judgment in favor of the appellees because a fact issue exists as to whether Shook’s cause of action against the appellees for legal malpractice is barred by the statute of limitations. We disagree.
The general rule for determining when the statute of limitations begins to run on any cause of action hinges upon when the cause of action accrues. Willis v. Maverick, 760 S.W.2d 642, 644 (Tex. 1988). A cause of action “accrues” for limitations purposes as soon as the defendant’s wrongful act effects some injury to the plaintiff. See Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 262 (Tex. 1994); Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990). However, as is true of most rules, there is an exception, albeit a very limited one. The judiciary has constructed a test--commonly known as the “discovery rule”-- which is used to determine when a claimant’s cause of action accrues in situations where the claimant might not otherwise become aware, within the prescribed time for filing suit against the offending party, that he has been legally wronged by the defendant and has a right to seek legal redress in a court of law. Burns v. Thomas, 786 S.W.2d 266, 267 (Tex. 1990); see Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996); Texas River Auth., 889 S.W.2d at 262; Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990); Weaver v. Witt, 501 S.W.2d 792 , 794 (Tex. 1977).
In Willis v. Maverick, the Supreme Court has held that legal malpractice suits fall within the small class of cases where the discovery rule applies and that a claimant’s cause of action does not accrue until the claimant “discovers or should have discovered through the exercise of reasonable care and diligence the facts establishing the elements of his cause of action.” 760 S.W.2d at 646; see Burns, 786 S.W.2d at 267. Such is the case before us.
Viewing the facts in the light most favorable to the nonmovant, here Shook, the following facts establish his relationship with the appellees. Shook maintains he hired the appellees in September 1984 to handle “four or five different things,” including a felonious criminal charge brought against him for hindering secured creditors, his divorce, the collection of a draft from a George Shaffer, and an “appeal” of a judgment taken against him by the First State Bank of Marlin. Even though Shook made the arrangement for his legal representation with McDonald, Malone actually handled Shook’s case.
After Shook was acquitted of the criminal charges in Falls County, he attempted to stay in contact with the appellees, calling their office frequently during the years following the conclusion of his criminal trial. After a while, it seemed to Shook as if nothing were being done to collect on the draft or in pursuing an appeal of the judgment First State Bank of Marlin had taken against him, though admittedly, he took no other action than calling the firm. In his affidavit, Shook maintains the last time he spoke with anyone at the appellees’ firm regarding the draft or “the appeal” was “pretty close” to the time he accompanied his cousin, James R. Shook, to the appellees’ office. At that time, Shook saw in his file that a dismissal judgment had been filed in the bank’s case against him. This document prompted Shook to question Malone regarding the status of his “appeal.” He learned that the bank had a valid judgment against him and that no further action had been taken by the appellees in that case. Furthermore, when Shook asked about collecting on the draft, Malone told him that the statute of limitations had run on any claim Shook might have against the proceeds of the draft. Having learned that his claim on the draft was barred, Shook inquired of Malone what he should do. Malone told Shook to do “[w]hatever you think you need to do.” Several months after this conversation occurred, Shook hired another attorney and subsequently brought suit against the appellees.
The summary judgment evidence presented by the appellees establishes the fact that Shook learned the appellees were no longer pursuing any of Shook’s alleged legal claims prior to October 1990, outside the two-year limitations period. According to Malone’s affidavit, after successfully representing Shook in a Falls County criminal trial, Malone spoke with Shook on several occasions. Several years after Shook’s criminal trial, Shook came into Malone’s law office with his cousin, James R. Shook, a client of Malone’s partner, Charles McDonald. At that time, Shook asked to see his file and questioned Malone regarding a document entitled “Dismissal Judgement.” According to Malone, he explained that the document was a “legal nullity” and that the bank had a final judgment against Shook. At that same time, Shook again expressed his desire to have Malone collect on the draft. Malone unequivocally told Shook that any case on the draft would be barred by limitations.
In his affidavit, McDonald swore to substantially the same facts as Malone, stating that he represented James R. Shook in a case which was appealed to and argued before the Tenth Court of Appeals in Waco in October 1990. According to McDonald, the only time Shook ever came to the appellees’ office with his cousin was prior to October 1990.
Kathy Wesson, a secretary at the appellees’ law firm, stated in her affidavit that McDonald had represented James R. Shook and argued a case before the Tenth Court of Appeals. She further stated that the last time James R. Shook was in the appellees’ office was prior to the argument of his case which occurred in October 1990.
A summary judgment may be based on testimonial evidence of an interested witness if the evidence is: (1) uncontroverted; (2) clear, positive, and direct; (3) otherwise credible and free from contradictions and inconsistencies; and (4) could have easily been controverted. Tex. R. Civ. P. 166a(c); Casso v. Brand, 776 S.W.2d 556, 558 (Tex. 1989); Cornelison v. Newbury, 932 S.W.2d 729, 731 (Tex. App.—Waco 1996, no writ.).
The summary judgment evidence presented by the appellees was clear, positive, direct, and free from inconsistencies. Both McDonald and Malone testified that Shook had been in their office with his cousin, James R. Shook, and had been told that no action was being taken in regard to an appeal of the bank’s judgment or in collecting the draft. Both stated that James R. Shook was in their office prior to October 1990, the time when his case was argued on appeal. Wesson, a secretary at the appellees’ law firm and not a party to this suit, also stated that McDonald argued a case on appeal for James R. Shook in October 1990. Furthermore, the testimonial evidence presented by the appellees could have been controverted by Shook. However, in response to the appellees’ motion for summary judgment, Shook, as part of his attorney’s affidavit, attached his own deposition from January 14, 1993, in which he equivocates as to exactly when he was in the appellees’ office and his understanding of the effect of the appellees’ inaction. Such is not sufficient to defeat a motion for summary judgment. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). Shook’s first point of error is thereby overruled. Because the statute of limitations bars all of Shook’s claims, we need not address the merits of his other points.
The judgment is affirmed.
BOBBY L. CUMMINGS
Justice
Before Chief Justice Davis,
Justice Cummings, and
Justice Vance
Affirmed
Opinion delivered and filed August 6, 1997
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