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Patrick v. Howard8/16/1995
Appellants Dennis Patrick and Vince Garcia ("Plaintiffs") sued the former sheriff of Sterling County, Don Howard, and others ("Defendants") for tort damages arising from their alleged wrongful criminal prosecution. Defendants moved for summary judgement on the ground that the applicable statutes of limitations barred the claims. See Tex. Civ. Prac. & Rem. Code Ann. Section(s) 16.002, .003 (West 1986). The trial court granted the motion and rendered a take-nothing judgment for Defendants. Plaintiffs appeal, contending that the trial court improperly granted summary judgement because either the discovery rule or the doctrine of fraudulent concealment tolled the statutes of limitations. We believe that neither is applicable in this context and will therefore affirm the trial-court judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Garcia and Patrick were subjects of an undercover drug operation instigated by the Sterling County Sheriff's Department. Both were indicted for drug offenses. Garcia was acquitted by a jury on August 14, 1990. The criminal indictment against Patrick was dismissed on April 29, 1991. On August 9, 1993, well in excess of two years following the termination of their criminal prosecutions, Plaintiffs filed suit against Defendants alleging: conspiracy, wrongful procurement of criminal complaints, false swearing, false arrest, false procurement of arrest, unreasonable search and seizures, false imprisonment, intentional infliction of emotional distress, invasion of privacy, conversion of personal property, abuse of process, and malicious prosecution.
The thrust of their complaint was that Defendants relied on an informant, William Lonnie Hood, who was himself later convicted of perjury in connection with other arrests and prosecutions. Plaintiffs allege that Defendants failed to use proper police procedures in creating and implementing their "sting" operation, thereby tortiously harming them in violation of the common law, Texas Tort Claims Act, and Texas Constitution. Additionally, Plaintiffs contend that Defendants knew Hood had fabricated evidence, committed perjury, and falsely accused them, yet fraudulently concealed these facts from them.
Defendants moved for summary judgement on the ground that limitations barred all of Plaintiffs' claims. Plaintiffs did not file a response to the summary judgement motion. Rather, they moved for a continuance because discovery was in its early stages. At a hearing on November 1, 1993, the trial court denied the Plaintiffs' continuance motion. The trial court later granted Defendants' summary judgment motion and rendered a take-nothing judgement in their favor. In three points of error, Plaintiffs contend on appeal that the trial court erred in granting the summary judgement because: (1) material fact issues exist regarding the discovery rule and fraudulent concealment; (2) the trial court improperly relied on Plaintiffs' failure to file a response to the summary judgement motion; and (3) the trial court abused its discretion in denying their motion for continuance.
DISCUSSION
We review the summary judgement under the well-established standards expressed in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When, as here, the district court does not indicate a particular ground for granting the summary judgment, we must uphold the judgement on appeal if it is proper on any ground asserted in the motion. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989); Tankersley v. Durish, 855 S.W.2d 241, 247 (Tex. App.ÄAustin 1993, writ denied). Defendants who move for summary judgement based upon the affirmative defense of limitations bear the burden of pleadin
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