author: JOHN E. POWERS, Justice (Assigned).

text:
    Mary ZIMMERMAN, Appellant, v. Robert Brett MASSONI, Appellee.
    No. 03-99-00509-CV.
    Court of Appeals of Texas, Austin.
    July 27, 2000.
    Publication Ordered Dec. 14, 2000.

      Virgil Yanta, The Yanta Law Firm, San Antonio, for appellant.
    Thomas N. Tourtellotte, Tom Tourtel-lotte, P.C., Driftwood, for appellee.
    Before Justices JONES, YEAKEL and POWERS.

       Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex.Gov't Code Ann. § 74.003(b) (West 1998).

   JOHN E. POWERS, Justice (Assigned).

Mary Zimmerman appeals from a trial court judgment that she take nothing by her personal-injury action against Robert Brett Massoni. We will affirm the judgment.

THE CONTROVERSY

Zimmerman sued Massoni in a negligence action to recover damages for personal injuries sustained in an automobile collision that occurred in Austin on April 28, 1995. Zimmerman filed her original petition on April 9, 1997, but Massoni was not served with citation until September 2, 1997. Unless tolled by the filing of Zimmerman’s petition, the two-year limitations period expired on April 28, 1997, and her action was barred. See Tex.Civ.Prac. & Rem. Code Ann. § 16.003(a) (West Supp. 2000). Whether the statute of limitations was tolled depends upon whether Zimmerman exercised reasonable diligence in effecting service of citation upon Massoni after suit was filed.

The jury were asked the following question and answered as indicated:

Did Mary Zimmerman exercise due diligence to have Robert Brett Massoni served with process of the Plaintiffs Petition?
The duty to exercise diligence in service of process of Plaintiffs Petition is a continuous one, extending until service is obtained by anyone acting on the Plaintiffs behalf.
“Due diligence” means that standard of diligence to procure service which an ordinarily prudent person would have used under the same or similar circumstances. The duty to use due diligence continues from the date suit is filed until Defendant is served.
Answer: “Yes” or “No.”
Answer: No.

The judgment rests upon the jury’s answer to the foregoing question. Zimmerman assails in five assignments of error the jury’s “No” answer and one instruction accompanying the question.

DISCUSSION AND HOLDINGS

The running of the limitations period was interrupted or suspended by the filing of Zimmerman’s petition provided she exercised reasonable diligence in procuring issuance and service of citation after filing her petition. Because Massoni was not served with citation within the limitations period and pleaded the bar of limitations, Zimmerman bore the burden of explaining the four-month and twenty-two day delay between the date (April 9, 1997) she filed her original petition, and the date (September 2, 1997) Massoni was served with citation. See Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 829-30 (Tex.1990).

To demonstrate “reasonable diligence,” Zimmerman was required to show (1) that she acted as an ordinary prudent person would act under the same circumstances, and (2) that she so acted throughout, that is to say continuously from filing suit to the date Massoni received service of citation. See Taylor v. Thompson, 4 S.W.3d 63, 65 (Tex.App.—Houston [1st Dist.] 1999, pet. denied). It was the particular duty of Zimmerman’s attorney to evaluate continuously the status of the various efforts to effect citation upon Massoni. See Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex.App.—Texarkana 1997, no pet.).

The reasonableness of any delay in procuring service of citation is a question of fact when the plaintiff offers a valid explanation for the delay. See, e.g., Witt v. Heaton, 10 S.W.3d 435, 437-38 (Tex.App.—Beaumont 2000, no pet.); Butler v. Ross, 836 S.W.2d 833, 836 (Tex.App.—Houston [1st Dist.] 1992, no writ). It has been held as a matter of law, however, that reasonable diligence was not shown in particular circumstances. See, e.g., Buie v. Couch, 126 S.W.2d 565 (Tex.Civ.App.—Waco 1939, writ ref'd) (something less than four-month lapse between filing suit and issuance of citation, and one-month lapse between issuance and service of citation); Taylor, 4 S.W.3d at 65 (four-month lapse between filing petition and service of citation, coupled with request for issuance of citation only two days before expiration of limitations period).

In her first assignment of error, Zimmerman contends the evidence showed conclusively or as a matter of law that she exercised due diligence in effecting service of citation on Massoni; and, in a second assignment of error, she contends the jury’s “No” answer is so against the great weight and preponderance of the evidence as to be manifestly unjust. We will summarize the material evidence. It is found in the testimony of Zimmerman’s attorney and certain exhibits received in evidence as a result of the attorney’s testimony.

Zimmerman’s attorney filed an original petition on April 9, 1997, directing that Massoni be served with citation at his residence at 2020 Castleview in Austin — an address shown for Massoni on an accident report prepared at the time of the collision by a police officer who investigated the collision. The clerk issued the citation promptly on April 9, 1997. Zimmerman’s attorney engaged a private process server to effect service and make the return. About April 15 or 16, 1997, the process server telephoned Zimmerman’s attorney and reported that after four visits she had found no one at home at the Castleview address although the home appeared to be occupied. Consequently, the process server had been unable to deliver the citation to Massoni personally as authorized by Rule 106(a)(1) of the Texas Rules of Civil Procedure.

On May 6, 1997, a little over twenty days later, Zimmerman’s attorney filed a motion requesting an order authorizing alternative service by leaving a citation with anyone over age sixteen at the Castleview address, as authorized by Rule 106(b)(1). An order of that character was signed May 22, 1997. The process server was unable to effect service of citation in that manner. The date of any attempted service is not shown in the evidence.

Zimmerman’s attorney filed on June 19, 1997, a motion requesting an order for alternative service by posting a citation to the door of the Castleview home, as authorized by Rule 106(b)(2). An order to that effect was signed June 26, 1997. About twelve days later, on July 9, 1997, the citation was posted on a door at the Cas-tleview home.

About July 11, 1997, an individual telephoned Zimmerman’s attorney and identified himself as the occupant of the home at 2020 Castleview. He reported that Masso-ni had moved from that address some time before. The attorney then made a series of four telephone calls to an adjuster for Massoni’s liability insurer but was unable to obtain from him Massoni’s current address. The attorney mailed the adjuster a letter on July 17, 1997, again seeking to learn Massoni’s current address. The adjuster telephoned the attorney in “late July” and gave the attorney Massoni s home address near Leander, Texas. Zimmerman’s attorney prepared an amended petition alleging the Leander address as a location where Massoni might be served with citation. She signed and dated the amended petition August 19, 1997. The attorney testified the amended petition was “filed with the court on August 22nd.” She requested issuance of a citation on August 25, 1997. It was issued that day and on September 2, 1997, delivered to Massoni in person. He thereafter appeared in the cause by filing a written answer.

The foregoing narrative reflects several delays a jury might consider important in assessing the reasonableness of the attempts to serve Massoni with citation: a lapse of about twenty days between the date (April 15 or 16, 1997) the process server reported she was unable to deliver citation to Massoni personally at the Cas-tleview home and the date (May 6, 1997) Zimmerman’s attorney requested the first order for alternative service; a lapse of sixteen days between the date (May 6, 1997) the order was requested and the date (May 22, 1997) the order was signed; the lapse of an indefinite period of time between an unspecified date the first mode of alternative service was attempted and June 19, 1997, when Zimmerman’s attorney requested a second order for alternative service; a lapse of twelve days from the date (June 26, 1997) the order was signed for the second form of alternative service and the date (July 9, 1997) citation was served in that fashion; and a lapse of some twenty-five days between the date (“late July”) Zimmerman’s attorney first learned Massoni’s current address in Leander, Texas, and the date (August 25, 1997) the attorney requested issuance of citation and directed service at that address.

On direct examination, Zimmerman’s attorney explained the lapse of April 16 to May 6, 1997, by stating she was preparing for trial in another case, in another county, that began April 15 and finished “[a]t the end of April.” When asked whether she had tried “to stay on top of this case” after learning, about April 15 or 16, 1997, that personal delivery of citation could not be obtained at the Castleview address, Zimmerman’s attorney testified she “was doing something, if you look at each date, approximately every week or two weeks on the case trying to get service done.” When asked what she was doing in that regard in August 1997, the attorney testified she was involved in another case during that month, in yet another county, that lasted “approximately two weeks.” The dates of that trial were not specified in the evidence. The attorney testified she instructed “the process server to use every effort to obtain service on Mr. Massoni” and “also made many, many calls to the process server trying to get service.”

On cross-examination, Zimmerman’s attorney conceded she did not attempt to learn Massoni’s current address through utility records, the driver’s license and automobile-registration records maintained by the Department of Public Safety, the mail-forwarding service of the post office, or by contacting an individual who had been a passenger in Massoni’s automobile when the collision occurred. The attorney’s paralegal reportedly made several telephone calls to directory assistance in Austin attempting to learn Massoni’s current address because the attorney’s office lacked an Austin telephone directory. The attorney conceded, however, that she had no personal knowledge that these telephone calls were in fact made. Until she learned it was incorrect, she relied throughout on the Castleview address reflected in the police accident report because it was the only address she had; and, because of “privacy issues” she did not believe she would be able to obtain Massoni’s current address from the post office or by checking at the Department of Public Safety for an address shown on a driver’s license or automobile registration record.

We believe the jury could reasonably decline to find from the body of evidence that Zimmerman’s attorney exercised reasonable diligence. We refer for example to the lapses mentioned above. While the attorney testified she was involved in other trials in other counties during April and August 1997, she did not testify that no other attorney or employee in the office of the attorney of record (the San Antonio firm of Yanta, Flores, and Korth, L.L.P.) was available to search for Massoni’s address, nor did she attempt to explain why she herself could not at some point tend to the matter during the times she was not in trial during the periods April 16 to May 6, 1997, and “late July” to August 19, 1997. The same may be said of the other lapses — the jury could reasonably view the lapses as being at most only partially explained in the attorney’s testimony. Nor did the attorney attempt to explain her persistence in relying throughout upon Massoni’s address as stated in the two-year-old accident report, or why her persistence in that regard was reasonable in the circumstances. While she testified the Castleview address was the only address she had, she did not attempt before July 1997 to verify that address or to search for other addresses in some manner, save perhaps by her paralegal’s reported telephone calls to directory assistance in Austin. Because the attorney admitted she had no personal knowledge that such calls were made, the jury were free to discount the claim that they were made. The jury could rationally conclude that a reasonable person in the attorney’s position, in the circumstances established by the evidence, would have contacted the adjuster much sooner after personal delivery of citation failed in mid-April 1997. Finally, we cannot conclude the jury were unreasonable if they believed the attorney’s vague and conclusory remarks fell short of a real explanation. We refer to the attorney’s statement that she did “something” every week or two weeks and her statement that she believed “privacy issues” would preclude her obtaining an address by certain inquiries; to her accounting in part only for the major time lapses; and, to her persistence over several months in regarding the Castleview address as the only place where Massoni might be served with citation.

We therefore hold the jury’s “No” answer is not against the great weight and preponderance of the evidence so as to be manifestly unjust; a fortiori Zimmerman did not establish as a matter of law reasonable diligence in effecting service of citation after filing suit.

In her next assignment of error, Zimmerman contends the jury’s answer is ambiguous because in the place provided for an answer the word “No” is superimposed, in heavier, bolder letters, over the word “Yes.” Zimmerman cites no authority for her contention. It is evident from the copy of the charge in the clerk’s record on appeal that a “No” answer was intended. We therefore cannot conclude the answer is ambiguous because contradictory in itself. More importantly, perhaps, the verdict was entered upon the minutes of the court. This raises a presumption that the verdict was read aloud by the clerk, no juror objected to its accuracy, and neither party requested a poll of the jury. See Tex.R.Civ.P. 293. And by not objecting before the jury were discharged, any error was waived. See Roling v. Alamo Group (USA), Inc., 840 S.W.2d 107, 109-10 (Tex.App.—Eastland 1992, writ denied); Torres v. Caterpillar, Inc., 928 S.W.2d 233, 244 (Tex.App.—San Antonio 1996, writ denied). We overrule the assignment of error.

Zimmerman complains in her next assignment of error that the trial court erred in framing the question and instructions over her objection. The question and instructions inquire about due diligence between the date suit was filed and the date Massoni was served with citation. Zimmerman contended for an instruction that made the relevant period of inquiry begin on the date limitations would have expired and end on the date Massoni was served with citation. The trial judge did not err, in our view, by rejecting Zimmerman’s contention. It is contrary to the principle involved.

The applicable statute specified the filing of suit as the event that would suspend or interrupt the running of limitations. See Tex.Civ.Prac. & Rem.Code § 16.003(a) (West Supp.2000). When a plaintiff files suit within the limitation period, but the defendant is served with citation outside that period, the delayed service relates back by operation of law to the date suit was filed, provided the plaintiff exercised reasonable diligence to effect such service after filing suit. See, e.g., Murray, 800 S.W.2d at 830; Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex.1990); Zale Corp. v. Rosenbaum, 520 S.W.2d 889 (Tex.1975); Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex.1970). We have found no authority for the idea that such service relates back to, for example, the last day of the limitations period. We overrule the assignment of error.

In her final assignment of error, Zimmerman contends the trial judge erred in excluding certain testimony that would have been given by her attorney. The excluded testimony would have established that the adjuster told Zimmerman’s attorney that he had in his records the same incorrect address of 2020 Castleview. The conversation occurred in “late July5’ 1997. Zimmerman argues the excluded evidence was “crucial” because it showed “that an ordinary, prudent person under similar circumstances might have not found the correct address” because Massoni’s “own agent” did not have it. We doubt the logic of Zimmerman’s theory. It assumes the adjuster himself employed due diligence with regard to his records, a fact not established in the evidence.

More importantly, the trial judge did not abuse her discretion by excluding the hearsay testimony. See Tex.R.Evid. 801, 802. Even if one assumes the logic of Zimmerman’s contention, and assumes the hearsay was admissible on some ground, we cannot conclude any error was reversible error. We do not believe, based on the entire record, that the question of reasonable diligence was controlled by the excluded testimony so as to be dispositive of the case. See Jamail v. Anchor Mortg. Servs., Inc., 809 S.W.2d 221, 223 (Tex.1991); New Braunfels Factory Outlet Ctr., Inc. v. IHOP Realty Corp., 872 S.W.2d 303, 310 (Tex.App.—Austin 1994, no writ). We hold accordingly.

Finding no reversible error, we affirm the judgment.

      . A copy of the amended petition is in the clerk’s record. It reflects that the attorney did indeed sign the pleading on August 19, 1997; however, the clerk’s file mark reflects the pleading was filed May 25, 1997, a date several months before the pleading was signed. Nothing in the record explains the irregularity.

      . The clerk's record does not reflect that any document was filed in the cause during August 1997. It does reflect that a citation was issued on August 25, 1997, for service on Massoni at his Leander, Texas, address.

      . See supra note 2.

      . We have before us only a partial reporter's record, which raises a presumption that it is the entire record for purposes of Zimmerman's assignments of error. See Tex.R.App.P. 34.6(c)(4). Neither party contends the missing parts of the reporter’s record contain anything material on appeal.


source: Caselaw Access Project

author: SARAH B. DUNCAN, Justice.

license: Public Domain

text:
    Mary Ann DOWNS, Beneficiary of Raymond Downs, Deceased, Appellant, v. CONTINENTAL CASUALTY CO., Appellee.
    No. 04-99-00111-CV.
    Court of Appeals of Texas, San Antonio.
    Aug. 16, 2000.
    Rehearing Overruled Nov. 15, 2000.

      Kenneth W. Howell, Miller & Henderson, San Antonio, for Appellant.
    Joe R. Anderson, Jeffrey R. Jurry, Kristin L. Lemke, Burns Anderson Jury & Brenner, L.L.P., Austin, Tim K. Singley, Thornton, Summers, Biechlin, Dunham & Brown, San Antonio, Bradley D. McClellan, Asst. Atty. Gen., Austin, for Appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by:

SARAH B. DUNCAN, Justice.

We grant Continental Casualty Co.’s and Mary Ann Downs’ motions for rehearing, withdraw our opinion and judgment issued January 26, 2000, and in their place issue this opinion and a revised judgment.

After the Texas Workers’ Compensation Commission found Raymond Downs’ death was not compensable, it denied the timely claim for death benefits filed by his widow, Mary Ann Downs. Downs appealed, contending Continental Casualty Co. waived its right to deny compensability by failing to either begin the payment of benefits or send notice of its refusal to pay within seven days of the date it received written notice of injury, as required by section 409.021(a) of the Texas Labor Code. The trial court granted Continental Casualty’s no-evidence motion for summary judgment and denied Downs’ motion, and she appeals. We hold Continental Casualty waived its right to deny compensability, reverse the trial court’s judgment, render judgment reversing the decision of the Texas Workers’ Compensation Commission, and remand the cause to the trial court for further proceedings consistent with this opinion.

Factual and Procedural Background

The material facts are not disputed. Downs made a timely claim for death benefits and established her beneficiary status. However, Continental Casualty did not either begin to pay benefits or notify Downs of its refusal to pay until forty-eight days after the date it received the notice of injury.

Standard of Review

“Interpretation of a statute is a pure question of law. over which the [trial] judge has no discretion.” Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex.1997).

The Parties’ Arguments

The relevant statutory provisions are sections 409.021 and 409.022 of the Texas Labor Code. Under section 409.021(a), the carrier “shall” either “begin the payment of benefits” or “notify the commission and the employee in writing of its refusal to pay and advise the employee of: (A) the right to request a benefit review conference; and (B) the means to obtain additional information from the commission” “[n]ot later than the seventh day after the date on which an insurance carrier receives written notice of an injury.” Tex. Lab.Code Ann. § 409.021(a) (Vernon 1996). If the carrier opts to refuse to pay, its “notice of refusal to pay benefits under Section 409.021 must specify the grounds for the refusal,” and “[t]he grounds for the refusal specified in the notice constitute the only basis for the insurance carrier’s defense on the issue of compensability in a subsequent proceeding, unless the defense is based on newly discovered evidence that could not reasonably have been discovered at an earlier date.” Id. § 409.022(a)-(b). From this provision, Downs argues that a carrier that does not either begin paying benefits or send a notice of refusal within the seven day period waives its right to later deny compensability. Continental Casualty argues the contrary, relying upon section 409.021(c), which provides in part that “[i]f an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives its right to contest compensability.” Id. § 409.021(c). This is in fact the construction adopted by the Texas Workers’ Compensation Commission. See Tex. Worker’s Compensation Comm’n, Appeal No. 960949, 1996 WL 367060, at *4 (June 28, 1996); Tex. Worker’s Compensation Comm’n, Appeal No. 950944, 1995 WL 481670, at *5 (July 24, 1995); Tex. Worker’s Compensation Comm’n, Appeal No. 92532, 1992 WL 373451, at *3-*4 (Nov. 13, 1992); Tex. Worker’s Compensation Comm’n, Appeal No. 92122,1992 WL 358230, at *5-*6 (May 4,1992). Under this construction, the only consequence of a carrier’s failure to comply with section 409.021(a) is the assessment of the administrative penalty provided for in section 409.021(e).

Waiver

In construing a statute, our objective is to ascertain and give effect to the underlying legislative intent. Texas Water Comm’n v. Brushy Creek Mun. Util. Dist., 917 S.W.2d 19, 21 (Tex.1996). When the language is clear and unambiguous, legislative intent may be determined from the plain and ordinary meaning of the words used. Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex.1999). But even if the statute is unambiguous, we may consider the legislature’s objective, the consequences of particular constructions of the statute, and any administrative constructions. Tex. Gov’t Code Ann. § 311.023 (Vernon 1998); see Atascosa County v. Atascosa County Appraisal Dist., 990 S.W.2d 255, 258-59 (Tex.1999). Therefore, to resolve whether a statutory provision is intended “to be mandatory or directory, we consider the plain meaning of the words used, as well as the entire act, its nature and object, and the consequences that would follow from each construction.” Sinclair, 984 S.W.2d at 961. “[Ujnless legislative intent suggests otherwise,” “[w]e generally construe the word ‘shall’ as mandatory.” Id.

The purpose of sections 409.021 and 409.022 is clear. With these provisions, the Legislature sought to encourage a earner uncertain of the compensability of an injury to pay the benefits pending a full investigation of the claim. Thus, it provided the carrier “shall” either pay the benefits or give notice of its refusal to pay within the seven-day period, Tex. Lab. Code Ann. § 409.021(a); and, perhaps most importantly, it provided that the payment of benefits is without prejudice to a determination of noncompensability within the sixty-day period following notice of an injury, id. § 409.021(c), but the carrier is bound by the grounds stated in a premature notice of refusal to pay. Id. § 409.022(a). The legislative purpose is thus advanced if we construe “shall” as mandatory. But what if we do not, as Continental Casualty argues? Not only is the legislative purpose underlying sections 409.021 and 409.022 not advanced, but the carrier is encouraged to do precisely what section 409.021(a) says it shall not do— nothing. Then and only then could the carrier escape paying benefits without the risk of being bound by a premature notice of refusal.

On rehearing, Continental argues that our construction of section 409.021(a) requires a carrier to begin paying benefits before the benefits have accrued and before Continental can make this determination. We disagree. Our construction of the statute merely requires a carrier to complete and file a form (TWCC-21) on or before the seventh day after the date it receives written notice of an injury. In TWCC-21, a earner must state either that it is refusing to pay any benefits because it denies the compensability of the injury (because the injury did not occur within the course and scope of employment) or that it will pay one or more types of benefits as required by the Workers’ Compensation Act, ie., if, as, and when a benefit accrues. See Tex. Lab.Code Ann. § 409.021(a)(1) (“begin the payment of benefits as required by this subtitle”). Thus, contrary to Continental’s argument, a carrier will not be required to begin paying income benefits before they accrue under section 409.082; the carrier will simply be required to state whether it will pay income benefits (or any other type of benefit) if, as, and when they accrue.

Continental also argues our construction of the statute will require it to continue paying benefits even if it later determines the injury is not compensable. We again disagree. If a earner files TWCC-21 timely and indicates it will pay benefits as they accrue, it then has until the sixtieth day after notice to investigate the injury, and it can deny compensability at any time within this sixty-day period. Tex. Lab. Code Ann. § 409.021(c). If, on the other hand, a carrier files TWCC-21 timely and refuses to pay any benefit, it will be limited to the grounds for refusal stated in its notice unless “there is a finding of evidence that could not reasonably have been discovered earlier,” in which case the carrier may reopen the issue of compensability. Tex. Lab.Code Ann. § 409.021(d). Thus, if, as Continental argues, a carrier determines that an injury is not compensa-ble (because of intoxication, for instance) after the seventh day after it receives notice, it may still contest compensability within the sixty-day period.

Finally, Continental argues a carrier will be exposed to bad faith liability— unfairly — if it files a notice contesting com-pensability “on information and belief.” See Aranda v. Insurance Co. of North America, 748 S.W.2d 210, 212-13 (Tex.1988). However, a carrier is liable for bad faith only if the employee is able to establish the absence of a reasonable basis for denying compensability, and the employer knew or should have known there was not a reasonable basis for denying the claim. Id. at 213.

Attorney’s Fees

After our initial opinion was issued, Downs filed a motion to modify our previous judgment to remand the issue of attorney’s fees. See Industrial Disposal Supply Co. v. Perryman Bros. Trash Serv., Inc., 664 S.W.2d 756, 761 (Tex.App.-San Antonio 1983, writ ref'd n.r.e.). The motion, which is not opposed by Continental, is granted.

Conclusion

To effectuate the legislative purpose underlying sections 409.021 and 409.022, we hold that a carrier waives its right to deny compensability if it fails to comply with section 409.021(a) of the Texas Labor Code by either agreeing to begin the payment of benefits or giving written notice of its refusal to pay within seven days after receiving written notice of an injury. We therefore hold that Continental Casualty waived its right to contest compensability, reverse the judgment of the trial court, render judgment reversing the decision of the Texas Workers’ Compensation Commission in Appeal Number 970045, and remand the cause for a determination of Downs’ attorney’s fees.

      . Section 409.021 provides:
      (a) An insurance carrier shall initiate compensation under this subtitle promptly. Not later than the seventh day after the date on which an insurance carrier receives written notice of an injury, the insurance carrier shall:
      (1) begin the payment of benefits as required by this subtitle; or
      (2) notify the commission and the employee in writing of its refusal to pay and advise the employee of:
      (A) the right to request a benefit review conference; and
      (B) the means to obtain additional information from the commission.
      (b) An insurance carrier shall notify the commission in writing of the initiation of income or death benefit payments in the manner prescribed by commission rules.
      (c) If an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives its right to contest compensability. The initiation of payments by an insurance carrier does not affect the right of the insurance carrier to continue to investigate or deny the com-pensability of an injury during the 60-day period.
      (d) An insurance carrier may reopen the issue of the compensability of an injury if there is a finding of evidence that could not reasonably have been discovered earlier.
      (e) An insurance carrier commits a violation if the insurance carrier does not initiate payments or file a notice of refusal as required by this section. A violation under this subsection is a Class B administrative violation. Each day of noncompliance constitutes a separate violation.
      Tex. Lab.Code Ann. § 409.021 (Vernon 1996).

      . Section 409.022 provides:
      (a) An insurance carrier’s notice of refusal to pay benefits under Section 409.021 must specify the grounds for the refusal.
      (b) The grounds for the refusal specified in the notice constitute the only basis for the insurance carrier's defense on the issue of compensability in a subsequent proceeding, unless the defense is based on newly discovered evidence that could not reasonably have been discovered at an earlier date.
      (c) An insurance carrier commits a violation if the insurance carrier does not have reasonable grounds for a refusal to pay benefits, as determined by the commission. A violation under this subsection is a Class B administrative violation.
      Tex. Lab.Code Ann. §§ 409.022 (Vernon 1996).


author: CATHERINE STONE, Justice.

text:
    Donald ROBERTS, Appellant, v. Michael LAIN, Individually, and Southern Pacific Transportation Company, Appellees.
    No. 04-98-01070-CV.
    Court of Appeals of Texas, San Antonio.
    Aug. 23, 2000.

      Bryan P. Cartall, Jeffrey A. Hiller, Curtis L. Cukjati, Cacheaux, Cavazos, Newton, Martin & Cukjati, LLP, San Antonio, for Appellant.
    Pamela Fulbright-Scheyer, Cathleen C. Herasimchuk, Rusty Hardin & Associates, Houston, for Appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by:

CATHERINE STONE, Justice.

The primary issue on appeal in this personal injury case is whether Donald Roberts, a former railroad employee, timely filed suit against his former employer, Southern Pacific Transportation Company, for negligent exposure to chemical solvents. We find that he did not, and therefore affirm the trial court’s summary judgment in favor of Southern Pacific.

Factual & Procedural Background

From 1971 to 1992, Donald Roberts (“Roberts”) worked for Southern Pacific Transportation Company (“Southern Pacific”) in different capacities and in various Southern Pacific offices located throughout Texas. During his first three years of employment, Roberts worked in San Antonio as a machinist, building and repairing locomotive engine parts. In this position, Roberts used cleaning solvents, primarily two agents he identified as SP 250 and SP 312. Roberts would immerse engine parts, his tools, and his bare hands into buckets containing these solvents. He also used the solvents to remove engine grease from his clothing. Shortly after his initial exposure to and use of these cleaning solvents, Roberts experienced adverse reactions, including rashes on his hands and forearms, irritation, temporary dizziness, metallic taste in his mouth, burning sensation in his eyes, and,- at times, shortness of breath. Roberts also experienced disturbed sleep patterns. Roberts neither sought medical care nor reported his adverse reactions to Southern Pacific. He continued to work with these solvents until 1974, when he was promoted to a supervisory position. Although he no longer had direct contact with SP 250 and SP 812 as a supervisor, Roberts continued to inhale the fumes of these solvents during routine daily inspections.

In 1985, Roberts transferred from Southern Pacific’s San Antonio office to its Eagle Pass office. There, he experienced difficulty with his supervisor, Michael Lain. According to Roberts, Lain waged a campaign of harassment and intimidation against him. In September 1990, Roberts began to suffer from weight loss, severe headaches, bouts of nausea, anxiety, memory loss, and other emotional problems. Roberts sought psychiatric care for treatment of depression and anxiety in 1991. His first treating physician, Dr. Montoyo, attributed his emotional and mental health problems to his stressful work environment and to his poor relationship with Lain. By 1992, according to Roberts, he began to question whether his exposure to SP 250 and SP 312 had caused or at least contributed to his declining health. That same year, Roberts’ mental health ultimately deteriorated to the point of a nervous breakdown. In December 1992, he took a medical leave of absence from which he never returned. In the summer of 1993, he was hospitalized for suicidal urges. Dr. Jimenez, Roberts’ treating psychiatrist beginning in August 1993, attributed Roberts’ mental health problems to job stress and the harassment he allegedly suffered at the hands of Lain. Roberts continued with psychiatric treatment until at least 1998.

In November 1995, Roberts sued Southern Pacific and Lain under the Federal Employers’ Liability Act (“FELA”) for intentional infliction of emotional distress, alleging that Lain’s conduct caused his mental breakdown. See 45 U.S.C. § 51 (railroad liable in damages to employee suffering on-the-job injury resulting from negligence of its officers, agents or employees). Roberts claimed that Southern Pacific’s failure to intervene on his behalf amounted to a failure to provide a safe work place. In July 1997, Roberts amended his suit against Southern Pacific to include a claim for negligent exposure to toxic materials, alleging that his exposure to SP 250 and SP 312 damaged his nervous system.

In 1998, Southern Pacific filed a no evidence motion for summary judgment, asserting the following grounds with respect to Roberts’ negligent exposure claim: (1) Roberts has failed to provide evidence that his claims were timely filed; (2) Roberts has failed to provide evidence that Southern Pacific had any reason to foresee that any chemicals to which he was exposed were or could be harmful; and (3) Roberts has failed to provide evidence of causation. The trial court entered a general summary judgment in favor of Southern Pacific on all of Roberts’ claims.

On appeal, Roberts challenges only the portion of the judgment related to his negligent exposure claim.

Standard of Review

A no-evidence summary judgment is properly granted if the respondent fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the respondent’s claim on which the respondent would have the burden of proof at trial. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied); Tex.R. Crv. P. 166a(i). Less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). When, as in the instant case, the judgment is silent regarding the grounds upon which it was granted, we will affirm on any meritorious ground advanced in the motion. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).

Statute of Limitations

Under FELA, Roberts’ claim for negligent exposure to toxic materials is subject to a three-year statute of limitations. 45 U.S.C. § 56. Compliance with FELA’s limitations period is a condition precedent to recovery. Gulf, Colorado & Santa Fe R.R. Co. v. McClelland, 355 F.2d 196, 197 (5th Cir.1966). The plaintiff therefore bears the burden to allege and prove that his cause of action was commenced within FELA’s three-year period. Carpenter v. Erie R.R. Co., 132 F.2d 362, 363 (3d Cir.1942), cert. denied, 318 U.S. 788, 63 S.Ct. 983, 87 L.Ed. 1155 (1943); Emmons v. Southern Pacific Transp. Co., 701 F.2d 1112, 1117 (5th Cir.1983). Because Roberts filed his claim for negligent exposure on July 16, 1997, his claim is timely filed only if his cause of action did not accrue before July 15,1994.

A cause of action generally accrues when a wrongful act causes some legal injury, even if the injury is not discovered until later, and even if all resulting damages have not yet occurred. S.V. v. R.V., 938 S.W.2d 1, 4 (Tex.1996); accord Childs v. Haussecker, 974 S.W.2d 31, 36-37 (Tex.1998). In those rare cases when the nature of the injury incurred is undis-coverable and the evidence of injury is objectively verifiable, the discovery rule applies. The discovery rule provides that a cause of action does not accrue until a plaintiff knows, or through the exercise of reasonable care and diligence, should have known of the wrongful act and resulting injury. S.V., 933 S.W.2d at 4; accord Childs, 974 S.W.2d at 36-37.

This judicially-created exception to the general rule of accrual applies in latent occupational disease cases. Childs, 974 S.W.2d at 33. In the context of such cases, accrual is deferred until a plaintiffs symptoms manifest themselves to a degree or for a duration that would put a reasonable person on notice that he suffers from some injury and he knows, or in the exercise of reasonable diligence should have known, that the injury is likely work-related. Id. at 39-40. We note that “discovery of the injury” does not mean that the plaintiff knows the precise name of the disease that is causing his symptoms or even that his condition has been affirmatively diagnosed by a physician. Id. at 41-42. Nor does “discovery” hinge on knowledge of the seriousness of the injury. Id.

Application of Discovery Rule

Roberts argues he met his initial burden under FELA because the injury for which he now sues — the deterioration of his mental health caused by exposure to toxic materials — is properly classified as a latent occupational disease, which thus invokes the discovery rule. As such, Roberts asserts that his cause of action did not accrue prior to 1997 because before that year he did not know or have reason to know that his mental health injuries, which surfaced in the early 1990’s, were due to his exposure to SP 250 and SP 312 from the early 1970’s. Roberts points out that his doctors initially linked his mental health problems to his stressful work environment, and that it was not until 1997 that his treating physician was able to make the causal connection between his prior chemical exposure and his present mental health condition. Roberts thus concludes he timely filed suit once he had reason to believe his mental health injuries were caused by his work-related chemical exposure.

In response, Southern Pacific contends that the discovery rule is not applicable to the instant dispute because Roberts manifested injuries in the early 1970’s from his occupational exposure to SP 250 and SP 310. It argues that Roberts’ claim for negligent exposure accrued almost twenty-years before he filed the instant suit, notwithstanding the fact that he did not know the full extent of his injuries flowing from such exposure. See id, at 37-38; S.V., 933 S.W.2d at 4. We agree with Southern Pacific’s position, finding that this court’s recent decision in Pustejovsky v. Pittsburgh Corning Corp., 980 S.W.2d 828 (Tex.App.San Antonio 1998, pet. pending), involving the application of the “single-action rule” in the context of a latent occupational disease case, controls the instant dispute.

There, Henry J. Pustejovsky, Jr. had worked from 1954 to 1979 in an aluminum manufacturing plant where he was exposed to asbestos. Pustejovsky, 980 S.W.2d at 829. In 1982, Pustejovsky was diagnosed with asbestosis, a scarring of the lung tissue. Id. He sued a supplier of asbestos products for his injuries and ultimately settled the lawsuit. Id. In 1994, Pustejov-sky was diagnosed with terminal mesothe-lioma, a cancer of the lining of the lungs, which, like asbestosis, is caused by breathing asbestos fibers. Id. Although born out of the same occupational exposure, asbestosis and mesothelioma are separate and distinct diseases. Id. Pustejovksy then sued several other suppliers of asbestos products for the injuries resulting from his cancer. Id.

The defendants successfully moved for summary judgment on the basis of limitations, arguing that pursuant to the “single-action rule,” which provides that there is but one cause of action for all damages arising out of a defendant’s wrongful act, Pustejovsky’s cause of action for mesothe-lioma accrued no later than 1982, the year he learned that he was injured by his occupational exposure to asbestos. Id. at 830. On appeal, the plaintiff argued against application of the “single-action rule” in the context of latent disease cases, contending that the limitations period for each cause of action commences when the discrete illness becomes discoverable. Id. The plaintiff thus asserted that Pustejov-sky’s mesothelioma claim accrued when he knew, or in the exercise of reasonable diligence should have known, that he had mesothelioma. Id. This court rejected that position, holding that current Texas law does not recognize separate accrual dates for separate injuries arising out of a single action. Id. at 832-33. Rather, the rule is that accrual for the legal injury occurs when “symptoms manifest themselves to such a degree that would put a reasonable person on notice that he or she suffers some injury that is work-related.” Id. at 833 (emphasis added) (citing Childs, 974 S.W.2d at 40). Because Pustejovsky learned in 1982 that he was injured from his exposure to asbestos, his claim for additional injuries arising out of that exposure was untimely. Id.

Although the instant case does not involve separate and distinct diseases stemming from the same occupational exposure, application of the “single-action rule” to the instant case nevertheless yields a result similar to the one reached in Pustejovsky. As explained by this court in Pustejovsky, the “single-action rule” rests upon the notion that only one cause of action exists for each breach of a legal duty. Id. at 831. Consequently, separate types of damages stemming from one breach will not result in separate causes of action. Id. (emphasis added). Here, Southern Pacific’s alleged wrong involves exposing Roberts to dangerous toxic chemicals. It is undisputed that from 1971 to 1974 Roberts experienced persistent adverse reactions from to his exposure to SP 250 and SP 312, including but not limited to, skin irritation, dizziness, and shortness of breath. Despite acknowledging such “problems” from his exposure to SP 250 and SP 312, Roberts nevertheless contends that his claim for negligent exposure did not accrue in the 1970’s because he is not seeking redress for those injuries. Rather, he argues that because the instant suit seeks damages for his mental injuries that manifested themselves well after his prolonged, daily exposure to and use of SP 250 and SP 312, his knowledge of those early “problems” or symptoms is immaterial to the question of when his claim for his mental injuries arising out of the same occupational exposure accrued. We disagree, finding that Roberts’ attempt to separate out “problems” or “injuries” stemming from one legal wrong is impermissible under the “single-action rule.” See id.

As noted, accrual of a cause of action is not delayed until a plaintiff has full knowledge of the extent of his injuries from the legal wrong. See S.V., 933 S.W.2d at 4. Here, the record demonstrates that Roberts experienced adverse reactions to SP 250 and SP 312 during his daily exposure to and use of them. We find that such persistent problems were sufficient indication to put Roberts on notice that he was harmed from his exposure to SP 250 and SP 312. Thus, we find that Roberts’ claim for negligent exposure accrued in the early 1970’s.

Even if we were to assume that accrual did not begin in the early 1970’s, we would nevertheless still conclude that Roberts’ claim for negligent exposure was time-barred. The record indicates that by 1992 Roberts began to associate his later-manifested symptoms of memory loss, severe headaches, bouts of nausea, and anxiety with his exposure to SP 250 and SP 312. A plaintiffs mere suspicion or subjective belief that a causal connection exists between his exposure and his symptoms is, standing alone, insufficient to establish accrual. Childs, 974 S.W.2d at 43. In the instant case, however, Roberts’ suspicions about the nature and cause of his later-manifested symptoms cannot be considered in a vacuum. That is, Roberts’ suspicions must be considered in light of his earlier-manifested, persistent adverse reactions to the toxic materials. See id. (physical impairment could give rise to conflicting inferences regarding plaintiffs knowledge of injury and its likely cause). Thus, viewing the facts as a whole, we find that by 1992, in light of his prior problems with SP 250 and SP 312, Roberts had reason to believe he had been injured by his occupational exposure to SP 250 and SP 312.

Because the record demonstrates that Roberts should have known in the early 1970s, or at the very least by 1992, that he was injured by his exposure to the toxic chemicals provided by Southern Pacific, we find that the trial court properly determined that his claim for negligent exposure to toxic materials filed in 1997 was barred by limitations. According, the summary judgment is affirmed.

      . Roberts also alleged that may have been exposed to other chemicals, including one solvent he identified as SP 355.

      . Although Roberts’ original petition was filed in 1995, the relation-back doctrine is not applicable to the instant case. See Tex. Civ. Prac. & Rem.Code Ann. § 16.068 (Vernon 1986). This doctrine allows an amended pleading to relate back to the original pleading and its file date if the causes of action asserted in the amended pleading are based upon same transaction or occurrence that formed the basis of the claims made in the original pleading. Id. Roberts filed suit in 1995 against Michael Lain and Southern Pacific for intentional infliction of emotional distress relating to Lain’s harassing conduct, which began sometime in the late 1980’s. Because Roberts’ claim for negligent exposure is based upon activity that occurred in the 1970’s, the savings provision of section 16.068 of the Civil Practice & Remedies Code is not triggered in the instant case. See Long v. State Farm Fire & Cas. Co., 828 S.W.2d 125, 128 (Tex.App.-Houston [1st Dist.] 1992, writ denied).

      . In November 1994, Mr. Pustejovksy died and his wife, Joe Ann Pustejovsky was substituted as a plaintiff, individually and as representative of her husband’s estate. Id. at 829.


author: TOM RICKHOFF, Justice.

text:
    Gene WHITE, Appellant, v. Anne H. BAYLESS, J. Anthony Guajardo, Sr., and Matthew S. Muller, Appellees.
    No. 04-00-00003-CV.
    Court of Appeals of Texas, San Antonio.
    Sept. 6, 2000.
    Rehearing En Banc Overruled Oct. 20, 2000.

      Carl Raymond Crites, Law Offices of Carl R. Crites, John L. Ray, John L. Ray, P.C., San Antonio, for Appellant.
    J. Anthony Guajardo, Sr., Clint M. Glen-ny, II, Glenny <& Brylak, San Antonio, Matthew S. Muller, Houston, for Appellee.
    Sitting: PHIL HARDBERGER, Chief Justice, TOM RICKHOFF, Justice, SARAH B. DUNCAN, Justice.
   OPINION

Opinion by:

TOM RICKHOFF, Justice.

This is an appeal from a summary judgment rendered in favor of Anne H. Bayless and her attorneys, J. Anthony Guajardo, Sr. and Matthew S. Muller, against Gene White. We affirm the summary judgment because White has no cause of action against Bayless, Guajardo, and Muller for actions taken by Guajardo and Muller in the context of their representation of Bay-less.

FACTUAL BACKGROUND

In August 1993, Bayless proposed marriage to White, and he accepted. At the time, White was supervising the remodeling of a house, which was owned by the Estate of Lucille F. Grist (the Grist Estate). Bayless and White agreed to purchase the house from the Grist Estate, with Bayless providing the purchase money and additional funds to remodel the house. Bayless created the Sunrise Investment Trust with her as sole grantor, trustee, and beneficiary. Bayless gave $150,000 to the Trust, which in turn, purchased the house from the Grist Estate. White and the Trust entered into an agreement under which he would live in the house and supervise completion of the improvements. White was to receive an hourly rate for his services, a portion of which would be deducted for rent. White later became a grantor, trustee, and beneficiary of the Trust.

In February 1995, Bayless decided she did not want to marry White, and she wanted to terminate the Trust and all financial connections with him. When Bay-less and White were unable to reach an amicable agreement, Bayless retained Guajardo to sue White for breach of fiduciary duty, accounting of funds, and recovery of investments. Guajardo is licensed to practice law in Texas. On April 2,1998, Guajardo and Muller signed Bayless’s original petition. Muller’s license to practice law in Texas was suspended on September 18, 1997 and reinstated on April 28,1998.

WHITE’S CLAIMS AGAINST BAYLESS AND HER ATTORNEYS

White filed a counter-claim against Bay-less, and a cross-action against Guajardo and Muller. White contended Bayless entered into a conspiracy with Guajardo and Muller to defraud him of his property; and destroy him financially, physically, mentally, and emotionally to the point that he would be forced to cede control of the Trust’s assets or that he would succumb physically and die, thus passing full control of the Trust to Bayless. White claimed Bayless and her attorneys used her lawsuit to obtain extralegal orders purporting to bind White and harm him, and that Gua-jardo and Muller acted contrary to stipulated agreements, on an ex parte basis, and without authority. White alleged that Bayless and her attorneys’ actions were calculated to cause him financial injury, grave physical injuries, severe stress and mental anxiety, and emotional pain and suffering.

Bayless, Guajardo, and Muller jointly moved for summary judgment. The trial court rendered summary judgment in their favor on the ground that no cause of action existed against them in favor of White.

SUMMARY JUDGMENT

STANDARD OF REVIEW

As movants for summary judgment, Bayless, Guajardo, and Muller had to negate the existence of genuine issues of material fact and establish their right to judgment as a matter of law. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). Summary judgment is proper where the plaintiffs allegations cannot constitute a cause of action as a matter of law. See Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex.1998).

A summary judgment should not be premised on a pleading deficiency curable by amendment. In re B.I.V., 870 S.W.2d 12, 13 (Tex.1994). Accordingly, the special exceptions procedure, and not summary judgment, is the proper means to test the adequacy of the other parties’ pleadings. See Texas Dep’t of Corrections v. Herring, 513 S.W.2d 6, 9-10 (Tex.1974). Generally, before a court may grant a “no cause of action” summary judgment, it must give the plaintiff an adequate opportunity to plead a viable cause of action. See Friesenhahn, 960 S.W.2d at 658; Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983). However, if the plaintiffs petition affirmatively demonstrates that no cause of action exists or that the plaintiffs recovery is barred, no opportunity to amend is necessary, and summary judgment or dismissal is proper. Peek v. Equipment Serv. Co., 779 S.W.2d 802, 805 (Tex.1989). When evaluating a summary judgment granted on the basis of deficient pleadings, we review the pleadings de novo, taking all allegations, facts, and inferences in the pleadings as true and viewing them in the light most favorable to the pleader. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). We will affirm the summary judgment only if the pleadings are legally insufficient. Id.

Summary Judgment in Favor of Guajardo and Muller

Guajardo and Muller moved for summary judgment on the ground that White did not state a cause of action against them. They relied on cases standing for the proposition that there is no cause of action against opposing counsel for representing a client in a judicial proceeding. See Mitchell v. Chapman, 10 S.W.3d 810, 811 (Tex.App.-Dallas 2000, pet. den.); Bradt v. West, 892 S.W.2d 56, 71-72 (Tex.App.-Houston [1st Dist.] 1994, writ denied).

White argues that his causes of action for conspiracy to commit fraud and intentional infliction of emotional distress can be maintained against Guajardo and Muller. He relied on cases standing for the proposition that an attorney is liable if he knowingly commits a fraudulent act or knowingly enters into a conspiracy to defraud a third person. See Poole v. Houston & T.C. Ry. Co., 58 Tex. 134, 137 (1882); Querner v. Rindfuss, 966 S.W.2d 661, 666 (Tex.App.-San Antonio 1998, pet. denied).

We therefore examine each of White’s claims in light of the actions shown to have been taken by Guajardo and Muller to determine whether they can be held liable for such actions. If Guajardo and Muller actively engaged in fraudulent conduct in furtherance of some conspiracy or otherwise, they can be held hable. See Querner, 966 S.W.2d at 666. White claims Bayless and her attorneys obtained several orders in furtherance of their conspiracy. Following is a list of those orders and White’s contentions:

1. “Temporary Restraining Order and Order Setting Hearing for Temporary Orders.” Although the order purports to be based on Bayless’s original petition, the petition does not contain the words “restraining order” and “injunction,” and the petition contains no pleading to support such an order and no prayer for such relief.
2. An “Agreement for Other,” which purports to provide for mutually temporary injunctions, but provides for nothing.
3. “Notice of Lis Pendens” referring to this suit. Under the heading “Kind of Proceeding,” assertions are made that are not related to the contents of the suit except for an alleged “breach of fiduciary duty,” and the assertions have nothing to do with a title to real estate.
4. A “Motion to Set” providing for a jury trial date 14 days from the date of setting in violation of Texas Rule of Civil Procedure 245.
5. An “Order for Issuance of a Writ of Sequestration” concerning two paintings contributed by White to the Trust and worth $250,000. The writ was issued after White had answered, but without notice to White or his attorney. The order provided that Bayless post a sequestration bond of $1000, and her attorneys were approved as her sureties; but White was required to post a $250,000 bond and obtain a licensed and recognized public surety company.
6. Am “Application for Writ of Sequestration” of property owned by a trust not a party to the lawsuit, which called for seizure of all property on the premises of a corporation not a party to the lawsuit.
7. An “Order for the Issuance of Temporary Restraining Order” concerning property belonging to a trust not a party to the lawsuit.

As further evidence of the conspiracy, White alleged he filed for bankruptcy because of Bayless’s “relentless extrajudicial onslaught.” He contends Bayless and her attorneys filed numerous pleadings in state court despite the automatic stay; tried to evict him even though the bankruptcy court did not have jurisdiction over eviction matters; filed a false proof of claim in his bankruptcy proceeding; and used “scurrilous and intemperate language and pejorative statements.” White also contends Guajardo joined Muller in Muller’s practicing law despite having had his license suspended.

Texas law has long authorized attorneys to “practice their profession, to advise their clients and interpose any defense or supposed defense, without making themselves hable for damages.” See Kruegel v. Murphy, 126 S.W. 343, 345 (Tex.Civ.App.-Dallas 1910, writ ref'd). An attorney may assert any of his client’s rights without being personally hable for damages to the opposing party. See Bradt, 892 S.W.2d at 76; Morris v. Bailey, 398 S.W.2d 946, 947 (Tex.Civ.App.-Austin 1966, writ ref'd n.r.e.). An attorney’s duties that arise from the attorney-chent relationship are owed only to the client, not to third persons, such as adverse parties. See Renfroe v. Jones & Assoc., 947 S.W.2d 285, 287 (Tex.App.-Fort Worth 1997, writ denied). They have not retained the attorney, the attorney has not rendered them any services, and no privity of contract exists between them and the attorney. Id. They have no right of action against the attorney for any injuries they suffer because of the attorney’s fault in performing duties owed only to the client. Id.

Under Texas law, attorneys cannot be held hable for wrongful litigation conduct. See Bradt, 892 S.W.2d at 71-72. A contrary policy “would dilute the vigor with which Texas attorneys represent their clients” and “would not be in the best interests of justice.” Id. at 72. Any other rule would act as a severe and crippling deterrent to the ends of justice because a litigant might be denied a full development of his case if his attorney were subject to the threat of liability for defending his client’s position to the best and fullest extent allowed by law, and availing his client of ah rights to which he is entitled. See Morris, 398 S.W.2d at 947-48.

The principle that there is no cause of action against opposing counsel for representing a client in a judicial proceeding focuses on the kind of conduct engaged in, not on whether the conduct was meritorious in the context of the underlying lawsuit. See Renfroe, 947 S.W.2d at 288; Bradt, 892 S.W.2d at 72. A disgruntled litigant has no right of recovery against the opposing attorney for that attorney’s having made certain motions in the underlying lawsuit, regardless of whether the motions were meritless or even frivolous, because making motions is conduct an attorney engages in as part of the discharge of his duties in representing a party in a lawsuit. Id. Even when an attorney engages in wrongful conduct as part of the discharge of his duties in representing a party in a lawsuit, there is no cause of action to the party on the other side. Id. (noting that the law provides for the punishment of such acts, citing Tex.R. Crv. P. 13 (power to punish attorney for filing improper pleadings, motions, and “other papers”); Tex.R. Crv. P. 215 (power to punish attorney for abusing discovery); Tex. Gov’t Code Ann. § 21.002 (Vernon 1988) (power to punish attorney for contempt of court)).

Here, each of the complained of actions by Guajardo and Muller involve a pleading filed with or orders obtained from a court. White does not assert he was unlawfully harmed by any single pleading or order; instead, he contends the pleadings and orders evidence a pattern of conspiracy to harm him. However, White’s claims against Guajardo and Muller arose from Guajardo and Muller’s actions taken as attorneys representing their client, Bay-less. The attorneys’ preparing and filing various pleadings with the trial court and the bankruptcy court were within the context of discharging their duties in representing their client. Guajardo and Muller owed no duty to White.

We hold that White does not have a cause of action against Guajardo and Muller because the relationship was adversarial and the attorneys owed no legal duty to White. See Mitchell, 10 S.W.3d at 812 (no cause of action based on opposing attorney’s allegedly willfully withholding a document); Querner, 966 S.W.2d at 669 (no cause of action based on probate attorney’s signature on application for sale of real property and accounting); Renfroe, 947 S.W.2d at 288 (no cause of action against creditor’s attorney based on issuance of wrongful writ of garnishment); Bradt, 892 S.W.2d at 73 (no cause of action based on opposing attorney’s filing an allegedly meritless motion for contempt). Furthermore, White has no cause of action based on Muller’s practicing law while his license was suspended because White was not in privity with Muller. Even assuming Guajardo and Muller’s actions went beyond the bounds of ethical behavior, the remedy is public, not private. See Mitchell, 10 S.W.3d at 812; Renfroe, 947 S.W.2d at 287.

Even if White had been able to show some sort of tacit agreement between Bayless, Guajardo, and Muller, White’s inability to articulate an actionable underlying tort claim is fatal to his conspiracy allegations. See, e.g., Hoggett v. Brown, 971 S.W.2d 472, 493 (Tex.App.Houston [14th Dist.] 1997, pet. denied) (concluding there was no actionable conspiracy claim once court determined plaintiff could not assert an actionable claim against defendants). We find there are no genuine issues of material fact, and Gua-jardo and Muller were entitled to judgment as a matter of law. Thus, the trial court properly rendered summary judgment in favor of Guajardo and Muller.

Summary Judgment in Favor of Bayless

Because White has no cause of action against Guajardo and Muller, he cannot maintain a conspiracy claim against Bay-less. See Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.1996) (defendant’s liability for conspiracy depends on participation in some underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable). Therefore, the trial court properly rendered summary judgment in favor of Bayless.

CONCLUSION

For the reasons set forth above, we affirm the trial court’s judgment in favor of Bayless, Guajardo, and Muller.

      . Bayless filed special exceptions, contending White’s petition asserted no cognizable claim against her based on her attorneys’ actions. The trial court denied the special exceptions. Bayless, Guajardo, and Muller later sought summary judgment because no cause of action existed. White did not object, in the trial court, to Bayless, Guajardo, and Muller’s reliance on the summary judgment procedure. Their reliance on the pleadings triggered a responsibility in White to request leave to amend, to the extent his pleading defects were curable by amendment. See Higbie Roth Constr. Co. v. Houston Shell & Concrete, 1 S.W.3d 808, 811 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). White did not request an opportunity to amend his pleadings to state a cognizable cause of action, and he does not make this complaint on appeal. See id. (Hig-bie waived reliance on any complaint premised on absence of special exceptions because he did not request an opportunity to amend).


author: PHIL HARDBERGER, Chief Justice.

text:
    Thomas Alfred GILCREASE, Appellant, v. STATE of Texas, Appellee.
    No. 04-99-00653-CR.
    Court of Appeals of Texas, San Antonio.
    Sept. 6, 2000.

      Vincent D. Callahan, San Antonio, for Appellant.
    Kevin P. Yeary, Asst. Crim. Dist. Atty., San Antonio, for Appellee.
    Sitting: PHIL HARDBERGER, Chief Justice, THOMAS RICKHOFF, Justice, SARAH B. DUNCAN, Justice.
   OPINION

Opinion by:

PHIL HARDBERGER, Chief Justice.

A jury found Thomas Alfred Gilcrease (“Gilcrease”) guilty of aggravated kidnapping, aggravated robbery, and aggravated sexual assault. The jury assessed his punishment for each conviction at life imprisonment and assessed $10,000 fines for the kidnapping and sexual assault convictions. In two points of error, Gilcrease asks us to consider: 1) whether the trial court erred in overruling his objection to the State’s use of “bastard” during closing argument, and 2) whether the State intimidated Gil-crease’s only witness into not testifying on his behalf. We find no error arising from Gilcrease’s trial and affirm the trial court’s judgment.

Background

Gilcrease abducted Veneta Searcy (“Se-arcy”) from the parking lot of a neighborhood bar. He drove her to a shack. He threw her against a wall and offered her to his colleagues for their sexual fulfillment. After she began praying, Gilcrease’s colleagues declined to engage in sexual acts with her. Gilcrease stated, “fher, I don’t care,” picked her up, removed most of her clothes (along with some of her personal belongings), and brought her into a separate room.

For the next thirteen hours, Gilcrease tried to penetrate Searcy with his penis. She fought back; he retaliated. Throughout the evening, he beat her into “white unconsciousness” with his hands, inserted a Cima bottle into her vagina and hit it until she was numb, bit her breasts until they bled, choked her until mucous came out of her nose, threatened to inject her with heroin to sedate her, and prevented her from leaving the room. Gilcrease told her that “I could take you on the south side and I could get a hundred dollars worth of heroin for you. And there’s another group over there who don’t give a sh-.... All we’re going to do is bury you ... next to the other ten or twelve girls that we’ve already got buried.” While carving into Searcy’s back with her pocket knife, he stated, “this is neat.” Gilcrease eventually overwhelmed Searcy and had sexual intercourse with her.

Searcy escaped the following morning. Almost naked, she ran to a nearby office building for help. Police later arrested Gilcrease.

Discussion

1. The State’s Closing Argument

In his first point of error, Searcy argues that the State’s use of “bastard” during closing argument was improper. The State said that “Ms. Searcy was selected by this bastard over here to be his victim.” Gilcrease objected.

Gilcrease argues that the trial court erred in overruling his objection. He asserts that because no evidence existed to indicate he was born out of wedlock, the use of “bastard” was improper jury argument.

The only acceptable jury arguments are those “within the areas of: (1) summation of the evidence ... (2) reasonable deduction from the evidence ... (3) answer to argument of opposing counsel ... and (4) plea[s] for law enforcement. ...” Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App.1973). Name calling and curse words, however, have no place in the administration of justice. Such words offend the dignity of the court. A courtroom is not the street. The trial court should have sustained the objection and admonished the State’s attorney. Jurors are wise enough to evaluate the credibility of the witnesses and the reliability of the evidence for themselves. They are prudent enough to be able to measure the demeanor of those who are in the court room. They can make conclusions about people for themselves. They do not need counsel’s illegitimate attempt to demean the defendant. A courtroom is a sanctuary for rational, deliberate, and careful argument. Such language can be reversible error in the proper case. We turn now to whether this is such a case.

The State contends that “bastard” does not necessarily refer to a person born out of wedlock. See The Concise Oxford DictionaRY 73 (7th ed.1982) (defining “bastard,” in part, as “disliked or unfortunate person”); WebsteR’s Ninth New Collegiate DictionaRY 134 (1991) (defining “bastard,” in part, as “an offensive or disagreeable person”). According to the State, because Gilcrease engaged in objectively despicable activity, the use of “bastard” was proper jury argument because it amounted to a proper and reasonable deduction from the evidence. The State also argues that it was a proper characterization of Gilcrease.

Remarks that fall outside the permissible bounds of jury argument are not constitutional errors. See Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998); see also Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App.2000). Such remarks constitute “other errors” that fall within Texas Rule of Appellate Procedure 44.2(b). See Mosley, 983 S.W.2d at 259. We must disregard error that does not affect the accused’s substantial rights. See TexR.App. P. 44.2(b). To determine if the State’s improper argument affected Gilcrease’s substantial rights, we look to three factors: (1) the severity of the misconduct, (2) measures adopted to cure the misconduct, and (3) the certainty of conviction absent the misconduct. See Mosley, 983 S.W.2d at 259 (citing United States v. Millar, 79 F.3d 338, 343 (2nd Cir.1996); United States v. Palmer, 37 F.3d 1080, 1085 (5th Cir.1994)).

In the present case, the State labeled Gilcrease a “bastard” once. After defense counsel’s objection was overruled, however, the State did not continue to engage in name calling. Aside from the misconduct, the testimony and forensic evidence are overwhelming of Gilcrease’s guilt. No evidence exists to support Gilcrease’s theory that he and Searcy engaged in consensual sex or that she had left with Gilcrease voluntarily. The State’s behavior is not excused, but in this case, did not cause a wrongful verdict to be rendered.

2. Did the State Intimidate Gilcrease’s Witness ?

In his second point of error, Gil-crease alleges that the State intimidated his only witness into not testifying. Interference by the State with a defense witness’s “free and unhampered choice to testify amounts to a violation of due process.” United States v. Vavages, 151 F.3d 1185, 1188 (9th Cir.1998).

After the State rested, Gilcrease attempted to call a Florentino Adame (“Adame”) to support its theory that Gil-crease and Searcy had engaged in consensual sex. Through his attorney, Adame invoked his Fifth Amendment right not to testify in this case. Gilcrease then rested. Later, the State and Gilcrease presented additional argument to the trial court:

DEFENSE COUNSEL: Today the Defense called Florentino Adame to testify. His attorney was here and present for him. Both he and his attorney had agreed that he would testify to the statement that he made last October 28, 1998, or 29th, 1998[sic]. And essentially what he said in that statement that he would testify to was, that he had seen Thomas and the woman on the bed.
“One time I saw them having sex, the other times they were just kind of laying on the bed and talking like lovers do. I did not see what the woman looked like. I never saw the woman leave.”
And shortly thereafter the State informed the attorney for Mr. Adame that if he did testify he would likely face charges of theft or robbery, and under those circumstances he— at that point he decided to invoke his Fifth Amendment privilege and he did not testify.
DEFENSE COUNSEL: We feel like our client’s due process rights were violated and that this was the only defense witness that was called. This was the only defense witness that we had. And that he refused to testify based on fact that the prosecutor had threatened him with filing charges against him for theft....
THE STATE: I just want to correct one thing. Just to clarify, the attorney for Florentino Adame asked me what he could be charged with. I said he could be charged with possession of stolen property, because in his voluntary statement that he gave to the police he admitted to knowingly taking that jewelry from somebody with the knowledge that it had been stolen from the victim.

(emphasis added).

The record does not reveal proof of the State’s attempt to intimidate Gilcrease’s witness. All we have before us is argument of counsel. The attorney for Gil-crease charged that the State intimidated the witness. The State responded it was simply answering the attorney’s question. The trial judge was in the best position to consider the unsubstantiated claim by Gil-crease’s counsel that Adame felt intimidated. Gilcrease did not introduce any evi-dentiary proof, at trial or in his motion for new trial, that Adame was intimidated. We overrule Gilcrease’s second point of error.

Conclusion

We affirm the trial court’s judgment.