Jerry Ayers v. Jeff Lee Erickson and Clayton Holcomb Canter ( 2006 )

NO. 07-04-0384-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

FEBRUARY 23, 2006 ______________________________

JERRY AYERS, APPELLANT

V.

JEFF LEE ERICKSON AND CLAYTON HOLCOMB CANTER, APPELLEES _________________________________

FROM THE 2^ND DISTRICT COURT OF CHEROKEE COUNTY;

NO. 2000-04-314; HONORABLE JOE CLAYTON, JUDGE _______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant Jerry Ayers brings this appeal from a summary judgment finding his suit against appellees Jeff Erickson and Clayton Canter barred by limitations. We will affirm.

The facts relevant to this appeal are undisputed. In August 1997 a collection of firearms owned by Ayers was taken from his home in a burglary. Ayers promptly reported the theft to police but had no information on who had taken them. After learning a person named John Byron Cook had possessed some of the guns after the theft, Ayers filed suit against Cook in April 2000. During his deposition in November 2000, Cook implicated appellees Erickson and Canter in the theft. In 2001, Ayers amended his petition to add Erickson and Canter as defendants.

Erickson and Canter filed answers asserting the affirmative defense of limitations. ⁽¹⁾ They contended Ayers' claims were barred by the two-year period of limitations set out in Section 16.003 of the Civil Practice and Remedies Code. Erickson and Canter filed a motion for summary judgment on their limitations defense. After denying the defendants' first motion for summary judgment, the trial court granted a supplemental motion reurging the same ground. The order also severed the claims against Cook, making the summary judgment final and appealable.

Ayers perfected appeal and now presents three issues for our review. His issues ask us to determine whether the trial court erred in granting judgment for Erickson and Canter on the basis of limitations.

A defendant moving for summary judgment on the basis of an affirmative defense such as limitations has the burden to prove conclusively all the elements of the affirmative defense. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). If the movant establishes that the statute of limitations bars the action, the nonmovant must then produce summary judgment proof raising a fact issue on limitations. Id. In reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and make all reasonable inferences in the nonmovant's favor. Id. Because the propriety of a summary judgment is a question of law, we review the trial court's decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).

Ayers does not question that section 16.003 of the Civil Practice and Remedies Code, which requires a plaintiff to commence suit within two years after the cause of action accrues, applies to claims for conversion and civil conspiracy. His response to the limitations defense is that the discovery rule and the doctrine of equitable estoppel apply to toll limitations until he learned the identity of the defendants. In most cases, a cause of action accrues when a wrongful act causes an injury, even if the fact of injury is not discovered until later and even if all resulting damages have yet to occur. Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998); S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). In cases when the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable, courts have applied the discovery rule as an "exception to the general rule of accrual." Childs, 974 S.W.2d at 36-37; accord, S.V., 933 S.W.2d at 4;Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996).

There is no question that Ayers was aware of the theft and resulting injury in August 1997. He offers public policy arguments why accrual of his claims should be tolled until he has a reasonable opportunity to discover the identity of the tortfeasors. Texas courts have addressed the question whether a plaintiff's inability to learn the identity of a potential defendant tolls limitations. Those courts have consistently held it does not. In Childs, the Texas Supreme Court held that even under the discovery rule once a person "discovers or in the exercise of reasonable diligence should have discovered the injury and that it was likely caused by the wrongful acts of another," a cause of action accrues, "even if the plaintiff does not know the exact identity of the wrongdoer." 974 S.W.2d at 40. See also Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 344 n.3 (Tex. 1992). That rule was applied to a claim for conversion in Steinhagen v. Ehl, 126 S.W.3d 623, 626 (Tex.App.-Beaumont 2004, pet. denied).

Some authority exists supporting Ayers' argument he could not have brought suit before identifying the proper defendants. See Riston v. Doe, 161 S.W.3d 525 (Tex.App.- Houston [14th Dist.] 2004, pet. denied) (holding suit against John Doe defendants did not toll limitations). Ayers contends this result denies him equal protection and due process of law. We may not consider this contention for two reasons. First, it was not presented to the trial court. We may not consider as grounds for reversal of a summary judgment issues not expressly presented to the trial court by written motion, answer or other response. Tex. R. Civ. P. 166a(c); Casso v. Brand, 776 S.W.2d 551, 553 (Tex. 1989). Additionally, Ayers presents no citation to authority or argument applying the well-established standards for analyzing claimed deprivations of equal protection and due process. Tex. R. App. P. 38.1(h); Moser v. Davis, 79 S.W.3d 162, 170 (Tex.App.-Amarillo 2002, no pet.).

Ayers next argues the accrual of his claims was tolled by the defendants' fraudulent concealment. When applicable, the equitable doctrine of fraudulent concealment estops a defendant from relying on limitations as a defense. Cadle Co. v. Wilson, 136 S.W.3d 345, 354 (Tex.App.-Austin 2004, no pet.). The doctrine is limited to those situations in which the defendant has a duty of disclosure, such as a physician to a patient ⁽²⁾ or attorney to client, or a fiduciary relationship exists. Id. Neither Erickson or Canter had a duty of disclosure to Ayers and the doctrine of fraudulent concealment is inapplicable. We overrule Ayers' first two issues.

By his third issue, Ayers contends that his amended pleadings asserted a claim for fraud governed by the four-year limitations period of section 16.004 of the Civil Practice and Remedies Code. We are similarly unable to find in the summary judgment record that such a contention was presented to the trial court. Neither Ayers' pleadings nor his response to the motions for summary judgment advised the trial court that he contended section 16.004 applied to any of his claims. All of the discussion in the summary judgment record concerns the two-year statute under section 16.003. His third point presents nothing for our review, Casso, 776 S.W.2d at 553, and is overruled.

Having overruled each of Ayers' issues, we affirm the judgment of the trial court.

James T. Campbell

Justice

1. Cook is not a party to this appeal and his answer does not appear in the record.

2. See, e.g., Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983).

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NO. 07-10-00232-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 25, 2011

BARSHA FANNER, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

NO. 11,293; HONORABLE DAN MIKE BIRD, JUDGE

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

ORDER ON ABATEMENT AND REMAND

            Appellant, Barsha Fanner, pleaded guilty in open court to charges of aggravated assault, a first-degree felony,[1] and was placed on deferred adjudication community supervision for eight years.  On the State’s motion, the trial court adjudicated him guilty of the offense and sentenced him to forty-five years’ imprisonment.  Appellant’s counsel has filed an Anders brief and a motion to withdraw.  See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed. 2d 493 (1967).  For reasons expressed herein, we abate and remand this cause to the trial court for appointment of new counsel.

            In support of his motion to withdraw, counsel certifies he has conducted a conscientious examination of the record and, in his opinion, the record reflects no potentially plausible basis to support an appeal.  See Anders, 386 U.S. at 744–45; In re Schulman, 252 S.W.3d 403, 406 (Tex.Crim.App. 2008). Counsel candidly discusses why, under the controlling authorities, the appeal is frivolous.  See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).  Counsel has demonstrated that he has complied with the requirements of Anders by (1) providing a copy of the brief to appellant, (2) notifying him of his right to file a pro se response if he desired to do so, and (3) informing him of his right to file a pro se petition for discretionary review.[2]  See In re Schulman, 252 S.W.3d at 408.

            When presented with an Anders brief, an appellate court has a duty to conduct a full examination of the proceeding, and if its independent inquiry reveals a non-frivolous or arguable ground for appeal, it must abate the proceeding and remand the case to the trial court so that new counsel can be appointed to brief the issues.  See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).

            In the instant case, the clerk’s record reflects that appellant was originally charged by information of the felony offense of aggravated assault.  The Texas Constitution requires that the State obtain a grand jury indictment in a felony case, unless the defendant waives that requirement.  Tex. Const. art. I, § 10; Teal v. State, 230 S.W.3d 172, 174 (Tex.Crim.App. 2007); see also Tex. Code Crim. Proc. Ann. art. 1.05 (West 2005) (“No person shall be held to answer for a felony unless on indictment of a grand jury.”).  Absent an indictment or valid waiver, a district court does not have jurisdiction over that case.  Teal, 230 S.W.3d at 174–75; Cook v. State, 902 S.W.2d 471, 475–76 (Tex.Crim.App. 1995).

            Our review of the clerk’s record suggests that no written waiver of indictment was intelligently, voluntarily, and knowingly executed in connection with the original plea proceeding.  See Tex. Code Crim. Proc. Ann. art. 1.141 (West 2005).  We do not have a reporter’s record of that proceeding from which to determine whether appellant orally waived indictment in open court.  See id.  We have deemed the apparent absence of a waiver of indictment an “arguable issue” based on three considerations: (1) counsel has made no representation to the Court in the Anders brief that appellant waived indictment, (2) the record before us suggests that appellant did not do so, and (3) the failure of appellant to waive indictment could divest the trial court of jurisdiction over the original plea proceeding and, therefore, could be a basis for challenging the trial court’s order adjudicating appellant guilty, even in the procedural posture in which this case stands.  See Trejo v. State, 280 S.W.3d 258, 261 (Tex.Crim.App. 2009).

            Though, after thorough review of the records of the plea proceeding, it may be revealed that appellant did validly waive indictment, we do not have such record before us and believe that we are required by Anders to abate and remand this cause to the trial court for appointment of new counsel to review this issue on behalf of appellant.[3]  See Anders, 386 U.S. at 744 (concluding that “if [an appellate court] finds any of the legal points arguable on the merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal”); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991) (relying on Anders to conclude that “if the Court of Appeals does find that there are arguable grounds, the appellate court must then guarantee appellant’s right to counsel by ensuring that another attorney is appointed to represent appellant on appeal”).

            Having concluded, from the record before us, that at least one arguable ground for appeal exists, we grant appellant’s counsel’s motion to withdraw, abate this proceeding, and remand this cause to the trial court for the appointment of new counsel. See Bledsoe, 178 S.W.3d at 827; Stafford, 813 S.W.2d at 511.  We direct the trial court to appoint new counsel to represent appellant on appeal by April 4, 2011.  The trial court shall furnish the name, address, telephone number, and state bar number of new counsel to the Clerk of this Court immediately after the appointment of counsel is ordered.  Finally, the trial court shall cause its order appointing counsel to be included in a supplemental clerk’s record which shall be filed with the Clerk of this Court by April 14, 2011.  Appellant’s brief shall address the issue we have identified, together with any other arguable issues identified by counsel, and shall be due forty-five days from the date of the trial court’s appointment of new counsel.  All other appellate deadlines shall run in accordance with the Texas Rules of Appellate Procedure.

            It is so ordered.

Per Curiam

Do not publish.

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[1] See Tex. Penal Code Ann. § 22.02 (West Supp. 2010).

[2] Notwithstanding that appellant was informed of his right to file a pro se petition for discretionary review upon execution of the trial court’s certification of defendant's right of appeal, counsel must comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days after this opinion is handed down, send appellant a copy of the opinion and judgment together with notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 409 n.22, 412 n.35.

[3] By our disposition, we do not necessarily preclude newly-appointed counsel’s conclusion, after having reviewed the relevant records and law, that appellant waived indictment and that, even after reviewing these and any other issues, the appeal is, in fact, frivolous.