Summary
sustaining dismissal of cause of action for "fraud on the court" for failure to state a viable claim
Summary of this case from Choice Personnel v. RichardsonOpinion
No. 05-04-00438-CV
Opinion Filed August 25, 2005.
On Appeal from the 59th Judicial District Court, Grayson County, Texas, Trial Court Cause Nos. 03-1300.
Affirmed.
Before Justices MOSELEY, FRANCIS, and LANG-MIERS.
MEMORANDUM OPINION
Douglas Dunn appeals the trial court's summary judgment against him in his civil claims related to his 1999 arrest by police officer Timothy Murrin. In seven issues, Dunn argues that the trial court erred in granting summary judgment. The facts are known to the parties so we do not recite them in any detail. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion pursuant to rule 47.1 of the Texas Rules of Appellate Procedure. Tex.R.App.P. 47.1. We affirm.
Dunn sued Murrin for illegal search and seizure under the Fourth Amendment of the United States Constitution and for "fraud and/or fraud on the court." Dunn alleged the search of his vehicle and seizure of his bag were illegal because he did not give his permission for the search. With respect to his fraud claim, Dunn alleged Murrin maliciously fabricated a police report to cover up the illegal search and seizure and that such report was relied upon by the trial court. Murrin moved for summary judgment on several grounds, including: (1) the statute of limitations barred Dunn's cause of action under the Fourth Amendment, (2) "fraud of the court" was not a proper civil cause of action, and (3) at least one element of the fraudulent misrepresentation claim could be negated. Without specifying its grounds, the trial court granted Murrin's motion for summary judgment and dismissed Dunn's claim.
To prevail on a motion for summary judgment, a movant must establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A defendant who conclusively negates at least one of the essential elements of each of the plaintiff's causes of action or who conclusively establishes all of the elements of an affirmative defense is entitled to summary judgment. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam). As in this case, where the trial court's order granting summary judgment does not specify the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam).
We begin by noting that a pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Clemens v. Allen, 47 S.W.3d 26, 28 (Tex.App.-Amarillo 2000, no pet.). While it is true that pro se pleadings and briefs are to be liberally construed, this does not mean that a pro se litigant is not required to comply with applicable rules. To do otherwise would give a pro se litigant an unfair advantage over a litigant who is represented by counsel. Shull v. United Parcel Serv., 4 S.W.3d 46, 53 (Tex.App.-San Antonio 1999, pet. denied). In his second issue, Dunn complains that the statute of limitations does not bar his claims against Murrin because of the Hughes v. Mahaney Higgins rule and because Murrin is equitably estopped from asserting the statute of limitations.
Dunn was arrested on August 13, 1999, and he filed his illegal search and seizure cause of action against Murrin on July 21, 2003, more than three years later. Dunn does not contest the applicability of the two-year statute of limitations to this claim, nor does he contend that Murrin failed to prove the affirmative defense of limitations. Rather, Dunn asserts the trial court erred in determining that, as a matter of law, Dunn was not entitled to the tolling of the two-year statute of limitation under the Hughes v. Mahaney Higgins rule as to his claim of illegal search and seizure. In Hughes v. Mahaney Higgins, 821 S.W.2d 154 (Tex. 1991), the supreme court held that when an attorney commits malpractice in the prosecution or defense of a claim that results in litigation, the statute of limitations on the malpractice claim against the attorney is tolled until all appeals on the underlying claim are exhausted. If the statute was not tolled in the malpractice claim, the client could be forced into adopting inherently inconsistent litigation postures in the underlying case and in the malpractice case. Id. at 156. Dunn argues that, under the Hughes v. Mahaney Higgins rule, the statute of limitations should have been tolled until May 2003, the date his other appeals on the same facts concluded. He argues that his applications for writs of habeas corpus pending in other state and federal courts would come in direct conflict with filing suit against Murrin. We disagree. Hughes applies to attorney malpractice, not an instance in which a defendant sues the police officer who arrests him. The rationale of Hughes is inapplicable to Dunn and Murrin, and we will not extend this rule to one in Dunn's position.
Dunn next argues that Murrin should be equitably estopped from raising the limitations defense. Equitable estoppel may bar a limitations defense when a party, his agent, or representative makes representations that induce a plaintiff to delay filing suit until the limitations period has run. Vaughn v. Sturm-Hughes 937 S.W.2d 106, 108 (Tex.App.-Fort Worth 1996, writ denied). To invoke equitable estoppel, a party must prove the following elements: (1) a false representation or concealment of material fact; (2) made with knowledge, actual or constructive, of the facts; (3) to a party without knowledge or the means of knowledge of the real facts; (4) with the intention that it should be acted upon; and (5) the party to whom it was made must have relied upon or acted upon it to his prejudice. Id. at 108-09. If a movant establishes an affirmative defense that would bar the suit as a matter of law, the nonmovant must then adduce summary judgment proof raising a fact issue in avoidance of the affirmative defense. Id. at 108. In his brief, Dunn fails to raise a fact issue as to the elements of equitable estoppel. Rather he asserts in his brief, "It is apparant (sic) from the record that the report of Murrin is fraudulent, see Appellant's response to Murrin's Motion for Summary Judgment, exhibits A, C, E, F, G, and L." Even if such exhibits raise a fact issue regarding the "fraudulent" nature of Murrin's report, Dunn must raise a fact issue as to whether or not a cause of action was concealed from him by Murrin. See id. at 110. He has failed to do so. Dunn was present during the commencement of the search and chose to flee while Murrin was conducting the vehicle search. Dunn was not without knowledge of the facts nor was he induced by Murrin to delay the filing of his suit. Dunn did not show that Murrin's limitations defense was barred by equitable estoppel. We resolve Dunn's second issue against him.
In his third issue, Dunn asserts that Murrin was not entitled to judgment as a matter of law on his causes of action for "fraud on the court" and fraud. Murrin moved the claim for "fraud of the court" should be dismissed because it is not a viable claim in a civil action. In his brief, to support his claim of "fraud on the court," Dunn relies on Kerwit Medical Products, Inc. v. N. H. Instruments, Inc., 616 F.2d 833 (5th Cir. 1980). We have reviewed this case and, contrary to Dunn's suggestion, it does not stand for the proposition that "fraud on the court" is an independent cause of action. Rather, the opinion explains what actions can be considered fraud on the court pursuant to rule 60(b) of the Federal Rules of Civil Procedure. There is no specific Texas counterpart to rule 60(b). Sutphin v. Tom Arnold Drilling Contractor, Inc., 17 S.W.3d 765, 775 n. 5 (Tex.App.-Austin 2000, no pet.). Consequently, we conclude Dunn has not shown on appeal that the trial court erred in dismissing his "fraud of the court" cause of action.
Additionally, in his third issue, Dunn asserts Murrin failed to affirmatively negate any one element of fraud. However, in his brief, Dunn only challenges the negation of any of the elements of fraud by stating that fraud may be a misrepresentation through a third party indirectly and he cites Neuhaus v. Kain, 557 S.W.2d 125, 138 (Tex.Civ.App.-Corpus Christi 1977, writ ref'd n.r.e.) as his authority. He provides no analysis or argument regarding the applicability of the Neuhaus case, a case concerning a lawyer's alleged misrepresentation during a real estate sale, to his suit against Murrin. Dunn has failed to make a clear and concise argument for his contentions with appropriate citations to authorities. We conclude Dunn's inadequate briefing has waived this assertion. Tex.R.App.P. 38.1(h); Natural Gas Clearlinghouse v. Midgard Energy Co., 113 S.W.3d 400, 416 (Tex.App.-Amarillo 2003, pet. denied). We resolve Dunn's third issue against him.
Finding sufficient grounds to resolve this appeal, we need not consider Dunn's other issues. We affirm the trial court's judgment.