Opinion
No. 05-10-01146-CV
04-05-2012
JOSEPH W. SARNO, Appellant v. MARSAW & ASSOCIATES PC, TERRY MARSAW, Appellees
AFFIRM; Opinion Filed April 5, 2012.
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-09-05288-D
MEMORANDUM OPINION
Before Justices Morris, Francis, and Lang-Miers
Opinion By Justice Lang-Miers
Joseph W. Sarno appeals from a take-nothing judgment rendered after a nonjury trial on his lawsuit against his former attorney, Marsaw & Associates PC and Terry Marsaw (collectively, Marsaw). Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm.
Background
On October 4, 1998, Dallas police officers arrested Sarno for public intoxication. Sarno represented himself against the public intoxication charge while it was pending in 1998 and 1999. In March 2000, Sarno hired Marsaw solely to seek a continuance of a March 9, 2000 trial date in the municipal court, with the understanding that Marsaw would withdraw as Sarno's counsel after securing the continuance. Marsaw appeared in court on Sarno's behalf on March 9, 2000. The court granted the continuance and reset the case to July 28, 2000. Marsaw did not withdraw as Sarno's counsel. Sarno appeared pro se, without Marsaw, in the municipal court on July 28, 2000. The court granted Sarno another continuance but did not reset his trial date.
From 2000 to 2002, Sarno checked the status of his case on the municipal court's phone system. Sarno testified that the system initially indicated that his case was on administrative hold, but eventually indicated that his case was no longer in the system. Sarno testified that he believed that the case had been dismissed. The record shows that he took no further action with respect to the case.
Sarno's case was set for trial on December 5, 2003. Sarno testified that he was not present and had no notice of the trial setting. Attorney Henry Campbell III often assisted Marsaw with handling cases in the municipal courts and was in the courtroom on December 5. When the court called Sarno's case, Campbell entered a no contest plea for Sarno. The court fined Sarno $100 and costs of court, and credited the fine and costs to Sarno for time he served in jail.
Sarno discovered the entry of the no contest plea in October 2006 and, on September 30, 2008, Sarno sued Marsaw in the Small Claims Court of Dallas County for:
A Small Claims Court has jurisdiction over cases involving monetary claims that do not exceed $10,000. A Justice of the Peace sits as judge of a Small Claims Court. See Tex. Gov't Code Ann. §§ 28.002, 28.003 (West 2004 & Supp. 2011).
The misrepresentation of Plaintiff (arising to the level of attorney malpractice) and breach of contract to represent Defendant in violation of the ABA's Rules of Professional Conduct where Defendant's deficient counsel and contract breach were the proximate cause of a criminal conviction on Plaintiff's otherwise clean record.
Marsaw raised the affirmative defense that the statute of limitations barred Sarno's claims. After a nonjury trial, the small claims court issued a take-nothing judgment against Sarno. Sarno appealed to the Dallas County Court at Law No. 4.
After a nonjury trial de novo, the county court at law also entered a take-nothing judgment against Sarno. At Sarno's request, the county court at law made findings of fact and conclusions of law. Sarno then appealed to this Court. Marsaw did not file a brief in this Court.
Because Marsaw failed to file a brief, we must treat facts stated in Sarno's brief as true. See Tex. R. App. P. 38.1(g) ("In a civil case, the court will accept as true the facts stated [in an appellant's brief] unless another party contradicts them."); Rawlins v. Rawlins, 324 S.W.3d 852, 854 n.2 (Tex. App.-Houston [14th Dist.] 2010, no pet.); Zeecon Wireless Internet, L.L.C. v. Am. Bank of Tex., N.A., 305 S.W.3d 813, 818 n.4 (Tex. App.-Austin 2010, no pet.). We conduct an independent analysis of appellant's claims of error, limited to the arguments appellant raises, to determine if the trial court erred. See Dillard's, Inc. v. Newman, 299 S.W.3d 144, 147 (Tex. App.-Amarillo 2008, pet. denied); Burns v. Rochon, 190 S.W.3d 263, 267 n.1 (Tex. App.-Houston [1st Dist.] 2006, no pet.).
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Standard of Review
A trial court's findings of fact in a nonjury trial have the same force and dignity as a jury's verdict on jury questions. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Wright Grp. Architects-Planners, P.L.L.C. v. Pierce, 343 S.W.3d 196, 199 (Tex. App.-Dallas 2011, no pet.). Unchallenged findings of fact are binding on the appellate court unless no evidence supports the finding or the evidence establishes a contrary finding as a matter of law. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Bundren v. Holly Oaks Townhomes Ass'n, Inc., 347 S.W.3d 421, 429-30 (Tex. App.-Dallas 2011, pet. denied) . Additionally, in a nonjury trial, the trial court is the sole judge of the witnesses' credibility and the weight given to their testimony. Wright, 343 S.W.3d at 199. We review a trial court's conclusions of law de novo to determine if the trial court drew the correct legal conclusions from the facts. Bundren, 347 S.W.3d at 429-30; Wright, 343 S.W.3d at 199. We must uphold conclusions of law if "any legal theory supported by the evidence sustains the judgment." Bundren, 347 S.W.3d at 430(quoting OAIC Commercial Assets, L.L.C. v. Stonegate Vill., L.P., 234 S.W.3d 726, 736 (Tex. App.-Dallas 2007, pet. denied) (internal quotation marks omitted)). We will reverse the trial court's judgment only if the conclusions of law are erroneous as a matter of law. Id. Statute of Limitations and Discovery Rule
In Sarno's first issue, he appears to ask us to review the county court at law's ruling on Marsaw's motion for judgment which was based on Marsaw's affirmative defense that the statute of limitations barred Sarno's claim. Sarno seems to suggest that the county court at law could not enter judgment in Marsaw's favor after it denied Marsaw's motion for judgment. He cites no authority that supports this position. See Tex. R. App. P. 38.1(i) ("The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record."). Sarno also argues that, because Marsaw fraudulently concealed his actions, the statute of limitations does not apply. But Sarno did not make this argument below and he may not raise it on this appeal. Tex. R. App. P. 33.1; Knapp v. Wilson N. Jones Mem'l Hosp., 281 S.W.3d 163, 170 (Tex. App.-Dallas 2009, no pet.) ("To preserve an error for appeal, a party's argument on appeal must comport with its argument in the trial court."). We conclude that Sarno has presented nothing for our review concerning the court's motion for judgment ruling or his fraudulent concealment argument.
Sarno also argues that the court erred by concluding that the discovery rule did not toll the statute of limitations for his legal malpractice claim. A two-year statute of limitations governs Sarno's legal malpractice claim. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (West Supp. 2011); Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex. 2001). The statute of limitations generally begins to run when the cause of action accrues, and accrual occurs when facts come into existence that authorize a claimant to seek a judicial remedy. Apex Towing Co., 41 S.W.3d at 120; Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex. 1998). The discovery rule applies to legal malpractice cases, so that the limitations period does not begin to run until the client discovers or should have discovered through the exercise of reasonable care and diligence the facts establishing the elements of a cause of action. Apex Towing Co., 41 S.W.3d at 120-21; Willis v. Maverick, 760 S.W.2d 642, 646 (Tex. 1988).
Sarno complains that he sustained an injury on December 5, 2003 when Marsaw, through Campbell, entered a no contest plea in Sarno's public intoxication case. Unless the statute of limitations was tolled, the statute began to run on December 5, 2003, and barred his claim, which he did not file until September 30, 2008. Sarno contends that the discovery rule tolled the statute of limitations on his legal malpractice claim because he did not discover the entry of the no contest plea until October 2006. He argues that he "exercised reasonable diligence in light of all the facts and circumstances and the discovery rule should apply to toll the statute of limitations in this cause of action."
But the court's unchallenged findings of fact establish that (1) after Marsaw obtained a continuance for Sarno in March 2000, "Sarno began representing himself completely again" and (2) although Sarno monitored his case from late 2000 through 2002, "[e]ventually, though, Sarno stopped monitoring his case." The court also made the following conclusion of law: "Marsaw and Marsaw & Associates, P.C. proved its affirmative defense of statute of limitations. The statute had expired for Sarno's claims both for legal malpractice and breach of contract. Sarno's argument for application of the 'discovery rule' is misplaced with this set of facts." Although the court also found that Sarno did not discover the entry of the no contest plea until October 2006, Sarno testified that he checked on the status of his case for two years after he obtained another continuance in July 2000, and that "[f]or all [but] the last few calls, the response [he] received was that the case was on administrative hold." As Sarno states in his brief: "[w]hen the hotline indicated that the case was no longer in the system, Mr. Sarno had an honest belief that the case had been dismissed, but did not verify this belief." He also testified that he did not contact the court to verify the disposition of the case and that he "ceased calling the information line." This evidence supports the court's implied conclusion that Sarno failed to exercise reasonable care and diligence regarding the outcome of his public intoxication case and the court's conclusion that "Sarno's argument for application of the 'discovery rule' is misplaced with this set of facts."
We resolve Sarno's first issue against him. Because our resolution of Sarno's first issue is dispositive, we do not address Sarno's other two issues.
We affirm.
ELIZABETH LANG-MIERS
JUSTICE
101146F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JOSEPH W. SARNO, Appellant
V.
MARSAW & ASSOCIATES PC, TERRY MARSAW, Appellees
No. 05-10-01146-CV
Appeal from the County Court at Law No. 4 of Dallas County, Texas. (Tr.Ct.No. CC-09- 05288-D).
Opinion delivered by Justice Lang-Miers, Justices Morris, Francis, and Lang-Miers.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellees Marsaw & Associates PC and Terry Marsaw recover their costs of this appeal from appellant Joseph W. Sarno.
Judgment entered April 5, 2012.
ELIZABETH LANG-MIERS
JUSTICE