Steven Charles Russo v. Derek A. Adame ( 2011 )

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.‖
2
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.).
3
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
4
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.
5
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.‖
7