ACCEPTED
03-14-00553-CV
4106640
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/11/2015 11:51:51 AM
JEFFREY D. KYLE
CLERK
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
2/12/2015 11:51:51 AM
JEFFREY D. KYLE
Clerk
Plaintiff now asserts that Respondent-Appellee committed
malpractice by lying to Plaintiff about the facts and circumstances of the
underlying criminal cases. Respondent-Appellee never once lied to Plaintiff
or anyone else about anything - not once, nor did Respondent hide
evidence from Plaintiff. Respondent handled Plaintiff's case in a careful
consistent manner, explaining to Plaintiff every step of the process and
what the possible and potential legal outcomes could and would be.
Plaintiff acknowledged every step to Respondent-Appellee.
Respondent enters two (2) affirmative defenses to the prosecution of
any and all claims that Plaintiff asserts. 1) The Statute of Limitations is a
complete defense to this civil suit in that Counts 1 - 10, as alleged in
Plaintiff's original petition. A cause of action for legal malpractice is in the
nature of a tort and is thus governed by the two-year limitation statute.
Willis v. Maverick, 760 S.W. 2d 642,644 {Tex. 1988). Plaintiffs alleged
events occurred in 2009 and 2010.
Plaintiff's legal malpractice claim derives from his 2010 Motion to
Adjudicate and Motion to Revoke Probation sentencing hearing,
respectively, since Plaintiff had previously entered a Plea of Guilty to both
cases- the Aggravated Assault on Peace Officer with Deadly Weapon (F-1)
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and Driving While Intoxicated (subsequent offense- third or more)(F-3).
At the sentencing hearing, the Honorable Judge Reva Towslee had access
to and did review Plaintiff's Pre-Sentence Investigation (PSI) Report
prepared by Lee County CSCD. Plaintiff had a laundry list of criminal
offenses dating back to 1999, including a Federal prison sentence of 10
years. Additionally, Plaintiff also had an extensive history of alcohol and
illegal substance abuse. Therefore, Plaintiff cannot claim that but-for
Respondent's breach of duty, Judge Towslee would have set aside
Plaintiff's Plea of Guilty, criminal record, alcohol and substance abuse
history and that Plaintiff would have prevailed in the underlying cases.
No Evidence of Slander, Libel and Defamation of Character Claim
To prove a cause of action for Slander, Libel, and Defamation of
Character, Plaintiff must show that Respondent: 1) expressed a statement
of fact, orally or in writing; 2) that the statement was defamatory; 3) that
the statement was false; 4) that Respondent was negligent in making the
false and defamatory statement; and 5) that Plaintiff suffered damages as
a result. Civ. Prac. & Rem. Code, Sec. 73.001, 73.005; See, Brown v. Swett
& Crawford of Texas, Inc., 178 S.W.3d 373, 382 (Tex. App.-Houston [1
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Dist.] 2005, no pet.). Plaintiff has no evidence of any of the five essential
elements of his claim for which he has the burden of proof at trial.
Statute of Limitation Precludes Slander, Libel and Defamation Claim
The Texas Civil Practice and Remedies Code expressly states the
statute of limitation for a libel and slander cause of action is one (1) year
"after the day the cause of action accrues." Civ. Prac. & Rem . Code, Sec.
16.002 (a). Plaintiff alleges Respondent caused Slander, Libel and
Defamation of Character at Plaintiff's original sentencing date of April 20,
2010. Plaintiff's Original Petition was filed April 9, 2014. Thus, more than
one (1) year passed since alleged statements and the claim of Slander,
Libel and Defamation and is therefore barred by the Statute of Limitations.
Respondent-Appellee prays this Honorable Court upholds the district
court's granting of summary judgment.
Respectfully submitted,
Chris Dorbandt & Associates, PLLC
Attorneys & Counselors at Law
7000 N. Mopac Expwy., Ste. 200
Austin, TX 78731
Tel: 512.407.9700
Fax : 512.407.9701
Email: cdorbandt@austin-law.com
~/{/~
Charles C. Dorbandt
SBN: 9000083 7
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CERTIFICATE OF COMPLIANCE
I hereby affirm that this Memorandum complies with the Texas Rules of
Appellate Procedures regarding text and footnotes. This document
contains 4,503 words.
CERTIFICATE OF SERVICE
By my signature above, I certify that a true and correct copy of the
foregoing Appellee's Memorandum in Answer to Appellants' Brief was sent
to Plaintiff via US Mail as follows: Steven Paul Wilson, TDO No. 01638937,
Allan B. Polunsky Unit, 3872 FM 350 South, Livingston, TX 77351 on
February 11, 2015.
NOTICE OF CHANGE OF ADDRESS
Effective February 1, 2015, the firm has moved. Our new address is 7000
N. Mopac Expwy., Ste. 200, Austin, TX 78731. The phone and fax
numbers remain the same.
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