George Goodson v. Randol L. Stout--Appeal from 51st District Court of Tom Green County

cv4-298.goodson TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00298-CV
George Goodson, Appellant
v.
Randol L. Stout, Appellee
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
NO. CV93-1197-A, HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING

PER CURIAM

 

George Goodson appeals from the take-nothing judgment against his claims arising out of Randol L. Stout's performance as Goodson's defense attorney in a criminal prosecution. We will affirm the judgment.

 
BACKGROUND

Goodson hired Stout to defend him against indictments for drug-related offenses enhanced by prior felonies. Stout represented Goodson for a few months in 1989. After Stout was replaced as counsel, Goodson was convicted in both cases and sentenced to consecutive terms of life and ninety-nine years.

Goodson sued Stout, charging him with negligence, gross negligence, deceptive trade practices, and breach of contract. Goodson alleged that Stout failed to adequately advise him of the law, failed to file pretrial motions of consequence, falsely promised to negotiate a plea bargain, failed to investigate the facts, and failed to represent him at trial on October 16, 1989 in Cause No. CR89-0223-B or March 16, 1990 in Cause No. CR89-0224-B. He pleaded that he did not discover these violations until August 15, 1993.

Stout moved to dismiss Goodson's claims on statute-of-limitations grounds. He attached trial court orders showing his dates of appearance (June 9, 1989) and replacement (September 6, 1989) as Goodson's counsel of record in Cause No. CR89-0224-B. He also submitted an order of substitution dated September 6, 1989 showing that Jack Bundrant, not Stout, represented Goodson in Cause No. CR89-0223-B during this time period. Stout contended that the two- and four-year statutes of limitations barred all of Goodson's claims.

Goodson responded by reiterating his 1993 discovery date. He argued that he could not have discovered the malfeasance earlier. He submitted no proof. He later moved for a continuance and attached an affidavit attempting to show his entitlement to the discovery rule.

The court's final order provides that the "[p]laintiff failed to show a cause of action against Defendant, and it is ORDERED that Plaintiff take nothing in all alleged causes of action."

 
DISCUSSION

Because Stout based his motion for dismissal on an affirmative defense and provided proof, the motion required determination of the existence of factual issues. We therefore will review it as a motion for summary judgment. See Speer v. Stover, 685 S.W.2d 22, 23 (Tex. 1985); J.M. Huber Corp. v. Santa Fe Energy Resources, Inc., 871 S.W.2d 842, 844 (Tex. App.--Houston [14th Dist] 1994, no writ). Goodson raises six meritless points of error against the judgment.

By three points of error, Goodson complains about the summary nature of the proceedings below. He contends that the trial court erred by entering a take-nothing judgment without hearing evidence or allowing him to appear in court and prove the timeliness of his filing. The court did not deny Goodson the opportunity to submit evidence. He failed to submit any evidence in his response to Stout's motion and evidence; the affidavit attached to his motion for continuance is not within the scope of our review of Stout's motion. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993) (appellate court can consider only those issues presented to the trial court in the motion or in the response to the motion). There is no showing that the court failed to consider the evidence submitted with the motion and response. Neither does the appellate record show that the court denied a request by Goodson to appear; it shows only that the court denied his motion for continuance. Goodson's complaint about the court's refusal to let him call witnesses is unfounded; no one can call witnesses at a summary-judgment hearing. See Tex. R. Civ. P. 166a(c). We overrule points one, two, and four.

Goodson complains by point of error three that the court erred by not specifying in its judgment which statute of limitations it employed to dismiss the case. Stout contended by his motion to dismiss that all of Goodson's claims were barred under the two- and four-year statutes of limitations. The court's statement that Goodson had shown no cause of action and should take nothing by his causes of action clearly implies that Goodson's causes of action did not survive under either statute of limitations. Goodson has shown neither error nor harm. We overrule point three.

Goodson complains by point five of the trial judge's refusal to recuse herself. Goodson never requested that the trial judge recuse herself. A motion for recusal was filed by intervenors, but its substance asks for the recusal of other district judges. The action of which Goodson complains did not occur. We overrule point five.

Point six, which asks us to take judicial notice of the errors presented, does not present error by the trial court. We overrule point six.

 
CONCLUSION

We overrule all the points of error. We affirm the judgment.

 

Before Chief Justice Carroll, Justices Aboussie and Jones

Affirmed

Filed: November 1, 1995

Do Not Publish

o dismiss Goodson's claims on statute-of-limitations grounds. He attached trial court orders showing his dates of appearance (June 9, 1989) and replacement (September 6, 1989) as Goodson's counsel of record in Cause No. CR89-0224-B. He also submitted an order of substitution dated September 6, 1989 showing that Jack Bundrant, not Stout, represented Goodson in Cause No. CR89-0223-B during this time period. Stout contended that the two- and four-year statutes of limitations barred all of Goodson's claims.

Goodson responded by reiterating his 1993 discovery date. He argued that he could not have discovered the malfeasance earlier. He submitted no proof. He later moved for a continuance and attached an affidavit attempting to show his entitlement to the discovery rule.

The court's final order provides that the "[p]laintiff failed to show a cause of action against Defendant, and it is ORDERED that Plaintiff take nothing in all alleged causes of action."

 
DISCUSSION

Because Stout based his motion for dismissal on an affirmative defense and provided proof, the motion required determination of the existence of factual issues. We therefore will review it as a motion for summary judgment. See Speer v. Stover, 685 S.W.2d 22, 23 (Tex. 1985); J.M. Huber Corp. v. Santa Fe Energy Resources, Inc., 871 S.W.2d 842, 844 (Tex. App.--Houston [14th Dist] 1994, no writ). Goodson raises six meritless points of error against the judgment.

By three points of error, Goodson complains about the summary n