IN THE
TENTH COURT OF APPEALS
No. 10-05-00238-CR
Laura Ann Spurlock,
Appellant
v.
The State of Texas,
Appellee
From the 413th District Court
Johnson County, Texas
Trial Court No. F38067
MEMORANDUM Opinion
This Court abated this case because Spurlock’s brief was past due. At the appeal status hearing, and on the record with counsel present, Spurlock told the trial court she wanted to “drop” her appeal.
Spurlock’s counsel filed a “motion to dismiss” the appeal and attached the reporter’s record of the appeal status hearing. However, Spurlock did not personally sign the motion. See Tex. R. App. P. 42.2(a) (“An appellant must personally sign the written withdrawal.”). Nevertheless, Spurlock, under oath, testified that she no longer wished to pursue her appeal. This is a sufficient basis on which to dismiss the appeal. See Hendrix v. State, 86 S.W.3d 762, 763-64 (Tex. App.—Waco 2002, no pet.); see also Huzarevich v. State, No. 10-03-00160-CR, 2003 Tex. App. LEXIS 10657 (Tex. App.—Waco Dec. 17, 2003, no pet.) (not designated for publication); Tex. R. App. P. 2.
Spurlock's appeal is dismissed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Appeal dismissed
Opinion delivered and filed March 15, 2006
Do not publish
[CR25]
intiffs' adoption of the child, holding the Hughes did not have standing to bring the suit at the time it was filed in December 1982. The court's opinion of March 7, 1985, clearly set forth the underlying action and specifically articulated why the Hughes lacked standing in the termination proceedings. However, plaintiffs still failed to file their malpractice suit within 2 years from this court's opinion.
Plaintiffs contend that since the Supreme Court did not deny their application for a writ of error to the Appeals Court's judgment until June 5, 1985, that limitations should not commence to run until 2 years after that date.
Limitations commenced from the time plaintiffs knew the facts giving rise to their lawsuit and could have brought such suit, and not when the Supreme Court refused their application for writ of error. Pack v. Taylor, CCA (Fort Worth) NRE, 584 S.W.2d 484; Woodburn v. Turley, 5th Cir.Ct.Appls, 625 F.2d 589.
We hold that plaintiffs had actual knowledge of all the facts upon which they base their cause of action no later than March 7, 1985, and that limitations ran on their claim on March 7, 1987; that their suit filed on May 21, 1987, was barred by the 2-year statute of limitations; and that the trial court did not err in rendering summary judgment that plaintiffs take nothing.
Points 1 and 2 are overruled.
Point 3 asserts the trial court erred in granting summary judgment against [plaintiffs'] actions based on negligent or intentional failure to request and obtain a hearing on termination when the 60-day period in which the affidavit of relinquishment was irrevocable because the discovery rule tolled those actions until plaintiffs knew or should have known defendants did not request such a hearing and the summary judgment evidence raises the issue of when plaintiffs knew or should have known [defendants] did not request a termination hearing within the 60-day period.
As noted, supra, it is undisputed that defendants obtained no hearing on the termination and adoption during the 60-day period and it is undisputed that plaintiffs knew there was no hearing within such period.
Point 3 is overruled.
Point 4 asserts the trial court erred in granting summary judgment on plaintiffs' causes of action based upon negligent and intentional failure to request a termination hearing within 60 days based on limitations because the pleadings and evidence raises a material issue of fact as to fraudulent concealment on the part of defendants.
Plaintiffs assert that Mahaney concealed the reason for not requesting a court hearing to terminate the mother's rights prior to the 60 days until September 1987.
It is true that Mahaney first represented that the reason for not having the hearing within the 60-day period was because of scheduling problems of the court [the court sitting in 2 counties]; and that later on deposition he indicated it was because he learned the mother had changed her mind.
The plaintiffs had actual knowledge that the hearing was not held during the 60-day period as early as March 1983; and as previously noted, at the very latest, plaintiffs knew all necessary facts constituting their cause of action by March 7, 1985, when the Court of Appeals' judgment and opinion was handed down.
Why Mahaney did not secure the termination within the 60 days is not a controlling fact; the fact that he did not obtain a hearing within the 60 days is the controlling fact.
Point 4 is overruled.
AFFIRMED
FRANK G. McDONALD
DO NOT PUBLISHChief Justice (Retired)
[Participating: Justices Hall and Means, and Chief Justice McDonald (Retired)]