Johnson v. McLean

• Decision Date: 18 February 1982
• Docket Number: No. 18057,18057
• Citation: 630 S.W.2d 790
• Parties: Daniel K. JOHNSON, Appellant, v. Kenneth McLEAN, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 790

630 S.W.2d 790

30 A.L.R.4th 1085

Daniel K. JOHNSON, Appellant, v. Kenneth McLEAN, Appellee.

No. 18057.

Court of Appeals of Texas, Houston (1st Dist.).

Feb. 18, 1982.

Daniel K. Johnson, pro se.

Kenneth McLean, Houston, for appellee.

Before SMITH, BASS and DUGGAN, JJ.

DUGGAN, Justice.

This is an appeal from a summary judgment dismissing a pro se suit filed by a penitentiary inmate against his former attorney. In his original petition, appellant Daniel K. Johnson alleged that his attorney, appellee Kenneth McLean, had rendered incompetent and negligent legal services in his representation of appellant in a criminal proceeding for aggravated rape. Appellant sought damages in the amount of $5,000,000 and a rescission in equity of the original employment contract, such as to require a refund in full of the attorney's fees paid by him to appellee. The trial court granted appellee's motion for summary judgment on the ground that appellant's action was barred by the two-year statute of limitations. We affirm the judgment.

Following his jury trial and conviction, appellant's motion for new trial was overruled, and he was sentenced on November 15, 1977 to a term of life in the Texas Department of Corrections. Upon proof of appellant's indigency, the trial court initially appointed appellee to represent appellant on appeal, but substituted other counsel on February 2, 1978. The Court of Criminal Appeals subsequently affirmed the conviction.

Appellant, while imprisoned, filed his lawsuit against appellee on December 30, 1977, some 45 days after his sentencing and notice of appeal in the criminal case, and included with his petition a pauper's affidavit for costs of the suit and process. The District Clerk of Harris County contested appellant's pauper's affidavit by affidavit filed January 23, 1978. The County Attorney of Harris County, who represents the District Clerk in such proceedings, made no request for a hearing on the contest. In June of 1980, appellant moved to dismiss the Clerk's contest. A hearing was held on September 29, 1980, almost twenty-nine months after the initial filing of the suit, at which the trial court dismissed the Clerk's contest and allowed appellant, as plaintiff, to proceed as a pauper. Citation was issued October 12, 1980 and the appellee was served November 18, 1980, some three years after appellant's alleged cause of action arose. Appellee's motion for summary judgment was filed January 19, 1981, which asserted that more than two years had elapsed from appellant's sentencing until the service of citation. Appellant, in his controverting affidavit opposing appellee's motion for summary judgment, urged that he had informed appellee by letter in January of 1978 that he had filed suit against him for his alleged incompetent representation of appellant during the criminal trial. The trial court's order granting summary judgment found that there was no genuine issue of any material fact, that the plaintiff's cause of action had accrued more than two years before the commencement date of the suit, and that the same was barred by limitation.

On appeal, appellant urges that the trial court erred in rendering summary judgment against him because his imprisonment tolled the two-year statute of limitation under the provisions of article 5535, V.A.T.S.

Following the allegations in appellant's original petition of appellee's negligence and appellant's resulting damages, appellant prayed for an equitable rescission of the contract and a refund of all fees paid. However, we note that rescission is not a remedy for a completed contract in absence of fraud, and despite appellant's dissatisfaction, the employment contract had been entirely performed. See, for example, Crabtree v. Burkett, 433 S.W.2d 9 (Tex.Civ.App.-Beaumont 1968, n.w.h.). The only possible cause of action expressed in appellant's petition is one alleging negligence and damages. The applicable statute of limitation would be article 5526, sec. 6, V.A.T.S., which reads:

There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterwards, all actions or suits in court of the following descriptions:

6. Action for injury done to the person of another. (emphasis added).

Although appellant filed his suit on December 30, 1977, only forty-five days after his sentencing, appellee was not served with citation until November 18, 1980, nearly three years later.

Our concerns in the disposition of this appeal are: (1) whether the two-year statute of limitations was tolled under the provisions of art. 5535, the "tolling" statute, because of appellee's imprisonment during this period; and if not, (2) whether the appellant's failure to have the appellee served with citation within the two-year period may be excused as an unavoidable delay caused by the fact that a contest to the appellant's pauper's affidavit was filed and that a hearing was not held on the matter until after the two-year period had expired. Stated otherwise, our concern is whether the appellant has shown due diligence in obtaining service of citation upon the appellee if art. 5535 does not apply.

The appellant contends that his imprisonment tolled the running of the statute of limitations under the provisions of art. 5535, which reads:

If a person entitled to bring any action mentioned in this subdivision of this title be at the time the cause of action accrues ... a person imprisoned ..., the time of such disability shall not be deemed a portion of the time limited for the commencement of the action and such person shall have the same time after the removal of his disability that is allowed to others by the provisions of this title.

Since the case of Lasater v. Waites, 67 S.W. 518 (Tex.Civ.App.1902), rev'd on other grounds, 95 Tex. 553, 68 S.W. 500 (1902), in which art. 5535 was first construed, there have been few Texas cases interpreting this statute in situations similar to the case at hand. In Lasater, the Court of Appeals applied art. 5535 to toll the statute of limitations applicable to a prisoner's civil suit during the period that the prisoner had been in the penitentiary.

Appellant cites Miller v. Smith, 431 F.Supp. 821 (N.D.Tex.1977), vacated and remanded, 615 F.2d 1037 (5th Cir. 1980) rev'd. per curiam 625 F.2d 43 (5th Cir. 1980), and Board of Regents of S.U.N.Y. v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980), but the question in both Tomanio and Miller was whether federal courts must apply state tolling provisions when they borrow state statutes of limitations, and not whether state courts must apply their own tolling provisions. The apparent trend of decisions in federal courts applying art. 5535 is that it should apply only to those prisoners who suffer under actual disabilities and who are unable to prosecute their civil suits from prison. In Stephens v. Curtis, 450 F.Supp. 141 (S.D.Tex.1978), which held that the Texas statute of limitations applicable to an inmate's civil rights action against a police officer was not tolled by art. 5535, the court stated that:

At common law, a convicted felon was civiliter mortus (civilly dead) and therefore did not have the legal capacity to prosecute a suit. The Texas Penal Code originally codified the common law rule, but the Code no longer contains provisions for forfeiture of civil or political rights as a possible penalty for criminal conviction.

The outdated assumption upon which the 1897 tolling provision for prisoners is based is wholly inconsistent with the court's...