carlos-marcos-lavernia-v-ronald-earle-chief-prosecutor-travis-county ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

---

NO. 03-98-00200-CV

---

Carlos Marcos Lavernia, Appellant

v.

Ronald Earle, Chief Prosecutor, Travis County, Texas; David Lowery, Managing Editor, Austin American Statesman; and Elizabeth Watson, Chief of Police, Austin, Texas, Appellees

---

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT NO. 94-09789, HONORABLE F. SCOTT McCOWN, JUDGE PRESIDING

---

Carlos Marcos Lavernia appeals the dismissal of his defamation causes of action brought in July 1994 against Ronald Earle, David Lowery, and Elizabeth Watson. Lavernia complains that appellees--in their respective roles as prosecutor, managing editor of the newspaper, and police chief--conspired to defame him during his 1984 criminal trial. The trial court dismissed the claims as frivolous. See Tex. Civ. Prac. & Rem. Code Ann. § 13.001 (West Supp. 1999). The dismissal implicitly overruled Lavernia's assertion that he represented a class as well as his motion for summary judgment favoring his claims. We will affirm the dismissal.

We review a trial court's dismissal of an indigent's suit for an abuse of discretion. Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d 113, 115 (Tex. App. --Austin 1997, writ denied). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles or whether the act was arbitrary and unreasonable. McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Bohannan, 942 S.W.2d at 115. A court may dismiss an indigent's action upon a finding that the action is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. § 13.001(a)(2) (West Supp. 1999). In determining whether the action is frivolous or malicious, the trial court may consider (1) whether the action's realistic chance of ultimate success is slight or (2) whether the claim has no arguable basis in law or in fact. Id. at § 13.001(b). We cannot review for an arguable basis in fact if there was no fact hearing. Morris v. Collins, 916 S.W.2d 527, 528 (Tex. App.--Houston [1st Dist.] 1995, no writ).

The trial court did not abuse its discretion by concluding that Lavernia's defamation claims were frivolous. A person must bring a suit for libel or slander not later than one year after the day a cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. § 16.002(a) (West Supp. 1999). A libel or slander claim accrues on the date of the communication or publication and not on the date of the consequences. See Ellert v. Lutz, 930 S.W.2d 152, 156 (Tex. App.--Dallas 1996, no writ); Salazar v. Amigos Del Valle, Inc., 754 S.W.2d 410, 412 (Tex. App.--Corpus Christi 1988, no writ). Lavernia filed this suit in July 1994, more than nine years after the dates he alleges the defamatory statements and publications were made and published. He does not allege facts entitling him to a tolling of the statute. Because, based on his allegations, Lavernia's claims are barred by the statute of limitations, the trial court did not abuse its discretion by concluding either that his action's chances of success were slight or that his claims had no arguable basis in law.

We also find no reversible error in the trial court's refusal to certify a class. It is not clear whether Lavernia appeals the trial court's refusal to certify a class; his notices of appeal appear to be filed in his individual capacity and there is no direct reference to the class action in his brief, but the style still includes a reference to the alleged class. We review a court order denying class certification using an abuse-of-discretion standard. Forsyth v. Lake LBJ Inv. Corp., 903 S.W.2d 146, 149 (Tex. App.--Austin 1995, writ dism'd w.o.j.). Having reviewed Lavernia's allegations, we conclude the trial court did not err by refusing to certify a class; not only are his claims time-barred, but he failed to allege facts sufficient to render the court's refusal to certify a class an abuse of discretion. See Tex. R. Civ. P. 42 (class-certification requirements).

Because Lavernia's suit was time-barred and frivolous, the trial court correctly overruled his motion seeking summary judgment favoring his claims.

We overrule appellant's arguments and affirm the judgment.

Mack Kidd, Justice

Before Chief Justice Aboussie, Justices Kidd and Powers^*  

Affirmed

Filed: January 14, 1999

Do not publish

^* Before John E. Powers, Senior Justice, (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

E="8">F. SCOTT McCOWN, JUDGE PRESIDING

---

Carlos Marcos Lavernia appeals the dismissal of his defamation causes of action brought in July 1994 against Ronald Earle, David Lowery, and Elizabeth Watson. Lavernia complains that appellees--in their respective roles as prosecutor, managing editor of the newspaper, and police chief--conspired to defame him during his 1984 criminal trial. The trial court dismissed the claims as frivolous. See Tex. Civ. Prac. & Rem. Code Ann. § 13.001 (West Supp. 1999). The dismissal implicitly overruled Lavernia's assertion that he represented a class as well as his motion for summary judgment favoring his claims. We will affirm the dismissal.

We review a trial court's dismissal of an indigent's suit for an abuse of discretion. Bohannan v. Texas Bd. of Criminal Justice, 942 S.W.2d 113, 115 (Tex. App. --Austin 1997, writ denied). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles or whether the act was arbitrary and unreasonable. McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Bohannan, 942 S.W.2d at 115. A court may dismiss an indigent's action upon a finding that the action is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. § 13.001(a)(2) (West Supp. 1999). In determining whether the action is frivolous or malicious, the trial court may consider (1) whether the action's realistic chance of ultimate success is slight or (2) whether the claim has no arguable basis in law or in fact. Id. at § 13.001(b). We cannot review for an arguable basis in fact if there was no fact hearing. Morris v. Collins, 916 S.W.2d 527, 528 (Tex. App.--Houston [1st Dist.] 1995, no writ).

The trial court did not abuse its discretion by concluding that Lavernia's defamation claims were frivolous. A person must bring a suit for libel or slander not later than one year after the day a cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. § 16.002(a) (West Supp. 1999). A libel or slander claim accrues on the date of the communication or publication and not on the date of the consequences. See Ellert v. Lutz, 930 S.W.2d 152, 156 (Tex. App.--Dallas 1996, no writ); Salazar v. Amigos Del Valle, Inc., 754 S.W.2d 410, 412 (Tex. App.--Corpus Christi 1988, no writ). Lavernia filed this suit in July 1994, more than nine years after the dates he alleges the defamatory statements and publications were made and published. He does not allege facts entitling him to a tolling of the statute. Because, based on his allegations, Lavernia's claims are barred by the statute of limitations, the trial court did not abuse its discretion by concluding either that his action's chances of success were slight or that his claims had no arguable basis in law.

We also find no reversible error in the trial court's refusal to certify a class. It is not clear whether Lavernia appeals the trial court's refusal to certify a class; his notices of appeal appear to be filed in his individual capacity and there is no direct reference to the class action in his brief, but the style still includes a reference to the alleged class. We review a court order denying class certification using