Woodburn v. Turley
| Decision Date | 08 September 1980 |
| Docket Number | No. 78-3580,78-3580 |
| Citation | 625 F.2d 589 |
| Parties | 23 Fair Empl.Prac.Cas. 1227, 24 Empl. Prac. Dec. P 31,259 Delmer E. WOODBURN, Plaintiff-Appellant, v. Windle TURLEY et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Douglas R. Larson, Dallas, Tex., Ed J. Polk, San Francisco, Cal., for plaintiff-appellant.
Robert G. Vial, Jeffrey S. Lynch, Dallas, Tex., for Windle Turley.
G. Duffield Smith, Gordon H. Rowe, Jr., Dallas, Tex., Eddie Vassallo, Dallas, Tex., for all other defendants-appellees.
Appeal from the United States District Court for the Northern District of Texas.
Before MORGAN, CHARLES CLARK and TATE, Circuit Judges.
Following the adverse adjudication of his age discrimination claim against a former employer, Delmer Woodburn filed this professional malpractice suit against attorneys Windle Turley, Mike McKool, Bill Jones, Bob Shoemaker, and the law firm of McKool, Jones, Shoemaker and Turley. The district court granted the defendants' motion for summary judgment on the ground that Woodburn's claim was barred by the Texas statute or limitations, and Woodburn appealed.
The events leading to Woodburn's complaint against the defendants began in November 1970, when Woodburn was discharged from employment by the LTV Aerospace Corporation. On January 18 1971, Woodburn signed a contract to retain the defendants for the prosecution of his age discrimination claim.
Under section 7(d) of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 626(d) (1976), as it then provided, Woodburn was required to deliver a notice of his intent to sue to the Secretary of Labor within 180 days after the alleged discriminatory act. 1 Calculated from the date of Woodburn's discharge from LTV, the deadline for notice to the Secretary passed on May 12, 1971. Woodburn alleges that neither he nor the defendant attorneys had submitted notice of intent to sue prior to that time.
On July 1, 1971, the defendants advised Woodburn that the prospects for his private cause of action were bleak, but that he might obtain the assistance of the Labor Department in regaining his job. Woodburn contacted the Department soon thereafter, and on December 14, 1971, the Department responded by letter as follows:
Dr. Mr. Woodburn:
Based upon the facts disclosed by our investigation, it could not be determined that your discharge was in violation of the Act.
The Department of Labor can take no further action with respect to this matter. This does not affect your individual rights, as explained on page 4 of the enclosed pamphlet. As you will note, there are certain requirements with specific time periods governing the circumstances under which an individual can file his own suit under this Act. The fact that you submitted information concerning an alleged unlawful practice has not been considered a notice to the Secretary of Labor of intent to file suit. We do not, of course, encourage or discourage such suits. The decision is entirely up to you.
Sincerely yours
E. M. Wiemar
The pamphlet that accompanied the letter explained that
On January 7, 1972, defendant Turley wrote to Woodburn that it was "not too late for the Labor Department to bring a case against LTV since that matter is controlled by a two year statute of limitations . . ." Turley added, however, that there was nothing more he could do for Woodburn's private cause of action at that time. After this letter, there was no further correspondence between Woodburn and the defendants.
Woodburn then hired attorney Ed J. Polk to litigate the same discrimination claim he had earlier brought to the defendants. On October 24, 1972, a lawsuit was filed for Woodburn against the LTV Aerospace Corporation. When LTV moved for summary judgment on the ground that Woodburn had failed to file a 180-day notice of intent to sue, Woodburn argued in reply that although no notice of intent had been filed with the Department of Labor, a charge of discrimination made by Woodburn to the Department satisfied the notice requirements of the Age Discrimination Act. The district court denied LTV's motion for summary judgment on May 18, 1973, stating in a brief order that "the court is of the opinion that the required notice of intent to file this action was given the Secretary of Labor. . . ."
While Woodburn's case was pending in the district court, this court decided Powell v. Southwestern Bell Telephone Co., 494 F.2d 485 (5th Cir. 1974), an opinion dated May 23, 1974, that a charge of discrimination made to the Department is not a satisfactory substitute for notice of intent to sue. On November 7, 1975, the district court dismissed Woodburn's claim for noncompliance with the statutory notice requirement and cited Powell as authority for its action. This court affirmed dismissal of Woodburn's claim on May 14, 1976.
Not until May 13, 1977, did Woodburn file the malpractice suit now before this court. On December 20, 1977, he amended his complaint to include a cause of action for breach of contract.
Conceived as a tort action, Woodburn's claim is governed by the two-year limitation of Tex.Rev.Stat.Ann. art. 5526. In applying this statute to malpractice cases, the Texas Supreme Court has held that the two-year period commences only after the wrongful act of the defendant results in legal injury to the plaintiff. Atkins v. Crosland, 417 S.W.2d 150 (Tex. 1967).
Woodburn would have us hold that he suffered no legal injury until the dismissal of his suit against LTV on November 7, 1975. Under Texas law, however, legal injury is complete when the negligence of the defendant attorney results in a diminution of the plaintiff's rights under the law, not when that diminution is confirmed by a court having jurisdiction over the matter. Pack v. Taylor, 584 S.W.2d 484 (Tex.Civ.App. 1979), Cox v. Rosser, 579 S.W.2d 73 (Tex.Civ.App. 1979). Were we to find that the law before Powell was so unsettled that Woodburn suffered no immediate injury, as indeed the district court in the LTV suit first believed that Woodburn's discrimination claim was viable, still Woodburn's injury was manifest no later than May 23, 1974, when Powell was decided.
Alternatively Woodburn asks that we apply the rule, reserved for special cases, that the statute of limitations is tolled until the plaintiff discovers his injury. See, e.g., Gaddis v. Smith, 417 S.W.2d 577 (Tex. 1967) (). Following the Powell decision, however, all the facts of Woodburn's injury were accessible to Woodburn and his new attorney. From at least that point forward, he was...
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