Pamalee Chambers v. Mark Z. Levbarg

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-98-00138-CV

Pamalee Chambers, Appellant

v.

Mark Z. Levbarg, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT

NO. 97-04769, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING

Pamalee Chambers appeals pro se from the trial court's rendition of summary

judgment against her in her legal malpractice action against appellee Mark Z. Levbarg. We will

affirm the trial court's judgment.

Factual and Procedural Background

In 1986, Levbarg won a judgment in Chambers's favor in an employment

discrimination-retaliation suit against her former employer. During the pendency of the

employer's appeal, the Supreme Court decided a case that the Fifth Circuit found controlling and

retroactive in its application, which resulted in a reversal of the judgment that the federal district

court had rendered in Chambers's favor. (1) Chambers then fired Levbarg. Levbarg formally

withdrew from representation in November 1990; new counsel represented Chambers on motion

for rehearing in the Fifth Circuit and on petition for writ of certiorari.

On April 21, 1997, Chambers sued Levbarg for malpractice. She pleaded the

discovery rule. Levbarg answered, filing a verified pleading of limitations. On September 12,

1997, Levbarg moved for summary judgment and filed his affidavit in support of that motion.

Chambers tendered a controverting affidavit October 3, 1997. The hearing on Levbarg's motion

for summary judgment was set October 6, 1997. After hearing argument, the trial court rendered

judgment in Levbarg's favor. Chambers filed a motion for new trial, which the trial court

overruled after holding a hearing on the motion.

On appeal, Chambers raises eight issues (labeled A-H). In issue A, Chambers

contends that the trial court erred in granting Levbarg's motion for summary judgment, the issue

we will address first. We will detail the other issues as we dispose of them.

Discussion

On review of a summary judgment, the movant for summary judgment has the

burden of showing that there is no genuine issue of material fact and it is entitled to summary

judgment as a matter of law. See Nixon v. Mr. Property Management Co. , 690 S.W.2d 546, 548-49 (Tex. 1985). The dispositive issue is not whether the summary-judgment proof raises fact

issues, but whether the summary-judgment proof establishes as a matter of law that there is no

genuine issue of material fact. See Gibbs v. General Motors Corp. 450 S.W.2d 827, 828 (Tex.

1970).

Statute of Limitations for Legal Malpractice

The two-year statute of limitations governs a cause of action for legal malpractice.

See Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (West Supp. 2000); Willis v. Maverick , 760

S.W.2d 642, 644 (Tex. 1988); Poth v. Small, Craig & Werkenthin, L.L.P. , 967 S.W.2d 511, 514

(Tex. App.--Austin 1998, pet. denied). The discovery rule applies to legal malpractice actions.

See Willis , 760 S.W.2d at 646 . The statute of limitations for a legal malpractice action does not

begin to run until the claimant discovers or should have discovered through the exercise of

reasonable care and diligence the facts establishing the elements of claimant's cause of action.

See id. The issue of when a cause of action accrues is a question of law for the court. See

Moreno v. Sterling Drug , 787 S.W.2d 348, 351 (Tex. 1990).

A defendant who moves for summary judgment based on the affirmative defense

of limitations assumes the burden of showing as a matter of law that limitations bar the suit. See

KPMG Peat Marwick v. Harrison County Hous. Fin. Corp. , 988 S.W.2d 746, 748 (Tex. 1999);

Ponder v. Brice & Mankoff , 889 S.W.2d 637, 641 (Tex. App.--Houston [14th Dist.] 1994, writ

denied). Specifically, the movant must: (1) conclusively prove when the cause of action accrued,

and (2) negate the discovery rule, if it applies and has been pleaded or otherwise raised, by

proving as a matter of law there is no genuine issue of fact concerning when the plaintiff

discovered or should have discovered the nature of its injury. See KPMG , 988 S.W.2d at 748 ;

Burns v. Thomas , 786 S.W.2d 266, 267 (Tex. 1990). A defendant moving for summary judgment

based on an affirmative defense, such as limitations, must conclusively prove the defense by

uncontradicted summary-judgment proof. See Delgado v. Burns , 656 S.W.2d 428, 429 (Tex.

1983); Kazmir v. Suburban Homes Realty , 824 S.W.2d 239, 242-43 (Tex. App.--Texarkana 1992,

writ denied). If a movant establishes that the statute of limitations bars the action as a matter of

law, the nonmovant must then adduce summary-judgment proof raising a fact issue in avoidance

of the statute of limitations. See KPMG , 988 S.W.2d at 748 ; Gonzalez v. Phoenix Frozen Foods,

Inc. , 884 S.W.2d 587, 589 (Tex. App.--Corpus Christi 1994, no writ).

Except with leave of court, affidavits and other written responses to a motion for

summary judgment must be filed not later than seven days before the hearing. See Tex. R. Civ.

P. 166b(c). For a late affidavit to be considered part of the summary-judgment proof, the record

must contain affirmative indication that the trial court permitted late filing. Watkins v.

Williamson , 869 S.W.2d 383, 387 (Tex. App.--Dallas 1993, no writ); Texas Airfinance Corp. v.

Lesikar , 777 S.W.2d 559, 563 (Tex. App.--Houston [14th Dist.] 1989, no writ). If no such

indication appears in the record, we must presume that the trial court did not consider a late-filed

affidavit. See INA of Tex. v. Bryant , 686 S.W.2d 614, 615 (Tex. 1985); Texas Airfinance , 777

S.W.2d at 563 . Assertions of fact in live pleadings, not framed in the alternative, constitute

formal judicial admissions. See Houston First Am. Sav. v. Musick , 650 S.W.2d 764, 767 (Tex.

1983); Manahan v. Meyer , 862 S.W.2d 130, 133 (Tex. App.--Houston [1st Dist.] 1993, writ

denied).

The Summary-Judgment Proceeding

Levbarg filed an affidavit in support of his motion for summary judgment. In the

affidavit, he averred that Chambers threatened to sue him for malpractice as early as 1988.

Levbarg, in the same affidavit, also stated that Chambers had approached Bert Pluymen, an

attorney in Austin, in 1991 about suing Levbarg for malpractice. (2)

Chambers did not timely file a controverting affidavit. The record does not show

any indication that the trial court allowed late filing. See Watkins, 869 S.W.2d at 387 . Thus, the

record contains direct uncontradicted evidence that the appropriate statute of limitations bars the

claim based on Levbarg's statement that Chambers threatened him with a malpractice suit in 1988.

His affidavit also proves that another attorney contacted him in 1991 concerning a possible

malpractice suit by Chambers against Levbarg. See INA , 686 S.W.2d at 615 (presume late-filed

controverting affidavits not considered). Therefore, we can conclude that Chambers knew or

should have known the facts establishing her cause of action not later than the end of 1991. See

Willis , 760 S.W.2d at 646 . Levbarg's summary-judgment evidence conclusively proved when

Chambers's alleged cause of action accrued and negated the discovery rule by proving that

Chambers knew about her cause of action for legal malpractice by the end of 1991. See KPMG ,

988 S.W.2d at 748 .

The summary-judgment record, besides Levbarg's affidavit, otherwise supports the

summary judgment. The record shows an August 1988 letter from Chambers to Levbarg

expressing dissatisfaction with his representation and accusing him of several mistakes in handling

her case even before the Fifth Circuit judgment. Chambers fired Levbarg in 1990. Other counsel

represented Chambers on motion for rehearing and on petition for writ of certiorari. The motion

for rehearing of the denial of writ of certiorari was overruled in December 1991. (3) At that point,

Chambers knew or should have known that she had an adverse result from the litigation in which

Levbarg had represented her, Levbarg no longer represented her, and she had other lawyers to

consult concerning Levbarg's conduct of the case.

The record contains February 1992 correspondence between Chambers and attorney

Elliott Flood concerning Flood's "substituting" for Levbarg. (4) Flood informed Chambers that he

was representing Chambers only in her claim against her employer. The letter states that he was

not representing her with respect to her "other claims" and told her that his advice in a previous

letter still held--the statute of limitations was running out and she should seek alternative counsel

on her other claims as soon as possible. Finally, Chambers in her pleadings states that she "did

not know" of her right to file a grievance or to sue for malpractice before November 1994, more

than two years before she sued.

The summary-judgment record supports several possible dates from which the

statute of limitations began to run, all of them at least two years before Chambers filed suit in

April 1997. Although Chambers asserts concealment of her cause of action, as detailed

previously, the record does not support that claim. (5) Accordingly, we overrule issue A.

Other Issues Presented

Chambers's other issues have been waived for a variety of reasons (lack of record

references, lack of citation of authority, lack of argument, and, in several instances, a statement

of the issues appearing in the preliminary list of issues only and nowhere else). See Tex. R. App.

P. 38.1(h); In re Williams , 998 S.W.2d 724, 730 (Tex. App.--Amarillo 1999, no pet.); Cherco

Properties, Inc. v. Law, Snakard & Gambill, P.C. , 985 S.W.2d 262, 266-67 (Tex. App.--Fort

Worth 1999, no pet.); see also Tex. R. App. P. 47.1 (opinion to be as brief as practicable to

decide issues necessary to final disposition). Nevertheless, we will attempt to address them briefly

in the interest of justice.

We note that Chambers has acted pro se . However, litigants choosing to act pro

se must comply with the applicable procedural rules and are held to the same standards that apply

to licensed attorneys. (6) See In re Estate of Dilasky , 972 S.W.2d 763 (Tex. App.--Corpus Christi

1998, no pet.); Greenstreet v. Heiskell , 940 S.W.2d 831, 834 (Tex. App.--Amarillo 1997, no

writ). To treat the pro se litigant differently would accord an unfair advantage over litigants

represented by counsel. See Mansfield State Bank v. Cohn , 573 S.W.2d 181, 184 (Tex. 1978);

Lin v. Houston Community College Sys. , 948 S.W.2d 328, 336 (Tex. App.--Amarillo 1997, writ

denied). (7)

In issues F, G and H, Chambers contends Levbarg concealed causes of action,

committed malpractice by failing to inform her of her rights under her unions' collective

bargaining agreement, and committed malpractice by failing to inform her of her rights under the

civil rights act. Issue F has been addressed in the discussion of the summary judgment and is

overruled. Issues G and H concern the merits of the malpractice claim, which we do not reach,

and are overruled.

In issue B, Chambers complains that one district judge abused his discretion in

failing to grant appellant's motion for continuance while discovery was pending. We will not

disturb a trial court's denial of a motion for continuance except upon a showing of a clear abuse

of discretion. See Villegas v. Carter , 711 S.W.2d 626, 626 (Tex. 1986); Levinthal v. Kelsey-Seybold Clinic, P.A. , 902 S.W.2d 508, 509 (Tex. App.--Houston [1st Dist.] 1994, no writ). In

this case, any pending discovery was not relevant to the limitations issue, an issue appropriate to

resolve by summary judgment before reaching the merits of the underlying claim. Further,

Chambers, the plaintiff in the action, did not request any discovery until six months after filing

suit. Cf. Levinthal , 902 S.W.2d at 510-11 (plaintiff sought discovery simultaneously with filing

of petition, discovery was material to no-evidence summary judgment, and case only on file for

three months). We overrule issue B.

In issue D, Chambers complains that a second district judge, during the hearing on

motion for new trial, abused her discretion by not admitting into evidence a letter, dated

December 15, 1997, from the National Labor Relations Board. The court sustained an objection

based on relevance to the summary-judgment proceeding. Chambers furnishes no reason this was

an abuse of discretion as the letter did not adduce any new evidence on the issue of limitations.

We overrule issue D. Issue E claims the trial court abused her discretion by placing appellant

under oath for voir dire examination by Levbarg "but refused to allow Appellant the same

opportunity to question Mr. Levbarg under oath during motion for new trial." A review of the

record from the hearing on the motion for new trial does not show any request by Chambers to

question Levbarg. Accordingly, we overrule issue E.

Finally, in issue C, Chambers complains the trial court abused its discretion in

overruling the motion for new trial. In reviewing the overruling of a motion for new trial, an

appellate court will not disturb the trial court decision absent a showing of manifest abuse of

discretion. See Champion Int'l Corp. v. Twelfth Court of Appeals , 762 S.W.2d 898, 899 (Tex.

1988); Poth v. Small, Craig & Werkenthin, L.L.P. , 967 S.W.2d 511, 514 (Tex. App.--Austin

1998, pet. denied). The court held a hearing and considered Chambers's contention that the case

should be reopened based on newly discovered evidence. The record does not show any abuse

of discretion. We overrule issue C.

Conclusion

After reviewing the record, we conclude that Levbarg met his burden to show that

limitations barred Chambers's malpractice suit and have overruled her issue challenging the

summary judgment. We have overruled all of her other issues presented. Accordingly, we affirm

the summary judgment.

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: February 25, 2000

Do Not Publish

1. See Chambers v. Southwestern Bell Tel. Co. , 917 F.2d 5 (5th Cir. 1990) , cert. denied,

502 U.S. 900 , 900 (1991).

2. Contrary to Chambers's complaint in her brief, Levbarg's affidavit was not made to the

"best of his knowledge and belief." Levbarg's affidavit states that after being duly sworn, the

statements in the affidavit are "true and correct" and are made from personal knowledge. See

Tex. R. Civ. P. 166a(f) (summary-judgment affidavits to be made on personal knowledge).

3. 502 U.S. 1001 , 1001 (Dec. 2, 1991).

4. Chambers hired Flood in an attempt to re-open her case based on retroactively applying

certain legislative changes. It is unclear whether Flood was aware of Ms. Chambers's

representation by Aaron Jackson, then of Ford & Ferraro, during the rehearing and certiorari

processes.

5.

Some of her assertions about Levbarg's act of concealment verge on the absurd; for

example, she claims he concealed her demotion from her, part of the basis of her original claims

against her employer.

6. In various filings in this cause, Chambers had complained about her inability to secure

counsel because of a conspiracy against her. However, the record shows she has been represented

by numerous counsel. In her lawsuit against her employer, she was represented by counsel before

Levbarg and two different counsel after Levbarg. With regard to her malpractice claim, she has

consulted several attorneys, as well as filing multiple grievances against Levbarg with the State

Bar.

7. Although these cases state the theory, this cause illustrates the practical reality of dealing

with pro se litigants. This cause has required extensive delay to bring to submission, caused in

part by a reinstatement after a dismissal for want of prosecution for non-payment to consider

Chambers's indigence claims under In re Arroyo , 988 S.W.2d 737, 738-39 (Tex. 1998) (challenge

sustaining contest to affidavit of indigence reviewed as part of appeal rather than mandamus;

record covering indigence proceedings to be prepared without pre-payment). This Court granted

several extensions of time to allow appellant to make payment arrangements for the record and

to allow her to seek counsel. Further, her initial brief was sixty pages long, and still only briefed

one of the issues presented.

ew of the

record from the hearing on the motion for new trial does not show any request by Chambers to

question Levbarg. Accordingly, we overrule issue E.

Finally, in issue C, Chambers complains the trial court abused its discretion in

overruling the motion for new trial. In reviewing the overruling of a motion for new trial, an

appellate court will not disturb the trial court decision absent a showing of manifest abuse of

discretion. See Champion Int'l Corp. v. Twelfth Court of Appeals , 762 S.W.2d 898, 899 (Tex.

1988); Poth v. Small, Craig & Werkenthin, L.L.P. , 967 S.W.2d 511, 514 (Tex. App.--Austin

1998, pet. denied). The court held a hearing and considered Chambers's contention that the case

should be reopened based on newly discovered evidence. The record does not show any abuse

of discretion. We overrule issue C.

Conclusion

After reviewing the record, we conclude that Levbarg met his burden to show that

limitations barred Chambers's malpractice suit and have overruled her issue challenging the

summary judgment. We have overruled all of her other issues presented. Accordingly, we affirm

the summary judgment.

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: February 25, 2000

Do Not Publish

1. See Chambers v. Southwestern Bell Tel. Co. , 917 F.2d 5 (5th Cir. 1990) , cert. denied,

502 U.S. 900 , 900 (1991).

2. Contrary to Chambers's complaint in her bri